Wilson v Tasmania - [2017] TASCCA 11

[2017] TASCCA 11

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Wilson v Tasmania [2017] TASCCA 11

PARTIES:  WILSON, Marcus Paul
  v
  STATE OF TASMANIA

FILE NO:  2447/2016
DELIVERED ON:  25 July 2017
DELIVERED AT:  Hobart
HEARING DATE:  7 June 2017
JUDGMENT OF:  Pearce J, Marshall and Porter AJJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Particular circumstances not amounting to miscarriage of justice – Misdirection – Defence counsel's argument to jury based on matters not put to complainant – Trial judge directed jury that it might think the weight of the submission significantly diminished – No requirement in the circumstances for trial judge to explain possibilities of why matters not put – Direction to jury not a misdirection and no miscarriage of justice.

R v Manunta (1989) 54 SASR 17, considered.
R v Rajakaruna (No 2) (2006) 15 VR 592; R v Morrow (2009) 26 VR 526; R v Ferguson (2009) 24 VR 51, applied.
Aust Dig Criminal Law [3470]

REPRESENTATION:

Counsel:
             Appellant:  G Barns and C Scott
             Respondent:  J Hartnett
Solicitors:
             Appellant:  N/A
             Respondent:  Director of Public Prosecutions

Judgment Number: [2017] TASCCA 11
Number of paragraphs: 46

Serial No 11/2017
File No 2447/2017

MARCUS PAUL WILSON v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PEARCE J
MARSHALL AJ
PORTER AJ
25 July 2017

Order of the Court

Appeal dismissed.

Serial No 11/2017
File No 2447/2016

MARCUS PAUL WILSON v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PEARCE J
25 July 2017

I agree with Porter AJ. For the reasons given by his Honour I would dismiss the appeal.
File No 2447/2016

MARCUS PAUL WILSON v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

MARSHALL AJ
25 July 2017

I agree with Porter AJ. For the reasons given by his Honour I would dismiss the appeal.

File No 2447/2016

MARCUS PAUL WILSON v STATE OF TASMANIA

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

PORTER AJ

25 July 2017

Introduction

On 11 August 2016, a jury found the appellant guilty of two counts of rape after a trial before Estcourt J. The two counts related to one incident on 26 July 2014. One count related to an act of oral sexual intercourse; the other to an act of vaginal intercourse. This is an appeal against conviction. The sole ground of appeal alleges that the trial judge erred in law by misdirecting the jury about the application of the rule in Browne v Dunn (1893) 6 R 67 (HL). In truth, the real complaint is about the direction the trial judge gave to the jury following his Honour's application of the rule. In short, the issue arose because then defence counsel argued to the jury a reason for the complainant to fabricate a complaint of rape, which reason had not been put to the complainant. Crown counsel raised the point, after which his Honour told the jurors that there had been such a failure, and that they might think that the weight of the argument was very significantly diminished because the complainant was not given an opportunity to comment on it.

Background facts

On 26 July 2014, the complainant, Ms D, met her friend Ms B in Glenorchy and went shopping for party food and alcohol. Afterwards they travelled by taxi to Ms D's home. There they both consumed alcohol. Ms D was affected by alcohol or, in her words, was "drunk". In the early evening Ms D telephoned her former partner to see if he wanted to have a drink with Ms D and Ms B. He agreed. The women then commenced to walk to his house in Glenorchy. Ms D was affected by alcohol to the extent that she was falling over. A white four-wheel drive came past the women and headed in the opposite direction to which they were walking. The car turned around and pulled up alongside where the women were walking. The driver was unknown to the women. He was the appellant.
The appellant asked the women if they wanted a lift, and the women accepted the offer. Ms D sat in the front passenger seat. Ms B sat in a rear seat of the car. Ms D directed the appellant to the address. On arrival, Ms B got out of the vehicle. Ms D remained in the car. Ms D gave evidence that the appellant told her not to get out of the car or he would kill her. The appellant left Ms B at the side of the road and drove to Tolosa Street Park near a toilet block. The appellant parked near the toilet block. There was a fence between the car and the toilet block. Ms D gave evidence that the appellant told her to jump the fence and if she did not do so he would kill her. She gave evidence that she was unable to jump the fence so the appellant told her to get on his back to jump the fence as he lifted her. The appellant told Ms D to go into the ladies toilet. She said she did so because she was scared.
Ms D gave evidence that the appellant demanded that she suck his penis and that if she did not do as she was told he would snap her neck. She gave evidence that the appellant pulled his trousers down and placed his penis inside her mouth and made her suck it. She then gave evidence that he told her to lie down or he would hurt her and snap her neck. She said that he grabbed her shorts and removed them. Ms D gave evidence that he put his penis in her vagina and tried to have sex with her while holding her wrists above her head and trying to kiss her. The appellant had sexual intercourse with Ms D.
The appellant then got up from the floor and went to the sink where he washed his hands and his penis. He used toilet paper to wipe himself. He then changed his top. Meanwhile, Ms D remained on the concrete floor. She smelt something burning outside the female toilet. Ms D said that the appellant returned to the female toilet and told her that if she got up he would hurt her. The appellant then drove away, leaving Ms D in the toilet.
After the appellant drove off, Ms D climbed back over the fence, injuring herself, and made her way to a nearby address at Tolosa Street, and made a complaint to people there that she had been abducted and raped. One of those people called the police. Later that evening Ms D spoke to police and had a reasonable conversation for 25 minutes with a detective. She was distressed in a conversation with Constable Dawson to whom she reported that she had been raped. Ms D later underwent a medical examination. She had a number of injuries including to her back and her vagina. Forensic swabs were taken. Dr Marshall gave evidence that the injuries to her vagina were consistent with forced intercourse.
Forensic testing was conducted on items seized from the toilet areas, including pieces of toilet paper from the male toilet area, some of which were burnt. Toilet paper from the basin of the female toilet contained semen which was confirmed by DNA testing to have come from the appellant. Semen was confirmed to be present on the high vaginal swab taken from Ms D.
Police interviewed the appellant on 13 January 2015. He denied picking up any females in Glenorchy. He denied being in Tolosa Street or engaging in sexual intercourse in that vicinity. At the trial, this position was abandoned. The appellant's case, as it was put to the complainant, was that the sexual conduct was consensual. The appellant neither gave nor adduced evidence.

Relevant events in the trial

The trial judge's comments need to be looked at in the overall context of the trial. (In the transcript passages that follow, I have de-identified the complainant.) First, towards the end of the cross-examination of the complainant, the following exchange occurred:
"And in relation to the oral intercourse or oral sex, that was something that you did willingly?……..No.
You wanted to be there with that man?……..No.
You were annoyed with your boyfriend and the fact that he'd gone out?……..I might've been annoyed with my boyfriend but it doesn't mean that I give [sic] someone else permission to rape or have sex with me …
Then when you had intercourse with the man, again, you were consenting. You wanted to do that?……I did not consent to anything to that person [sic].
It was your idea to be in those toilets having sex?……No, it wasn't. It was not."
In her closing address to the jury, Crown counsel said:
"It might be suggested that Ms D has been caught out in a lie [about telling police that her boyfriend was her fiance], and that'll impact on your assessment of her claim that this was a lack of consent. Well, and as I understand it, she made up, she was mad at her boyfriend, so she went out and had casual sex and then made out that it was a rape.
…
Everything about what you've heard in this trial, from Ms D, from all the other witnesses, from being at that toilet block, suggests that this was non-consensual and not a case where she her inhibitions were lowered so much that she behaved in the way suggested.
Do you really think that she is so skilled in deception that, having lowered her inhibitions, that she would immediately regret it and then be able to, within minutes, conjure up shaking, crying, limping to get help because … she regretted what she'd done or she realised she couldn't get a ride home? [Emphasis added.]
In her closing address to the jury, then defence counsel put the following:
"The issue of consent doesn't arise if you wish later, on reflection, that something hadn't occurred. Regretting that you did something doesn't equal rape, and I'd suggest to you that that is exactly what you are dealing with here.
After the acts that the defence say are consensual, it's at that point that Ms D begins to regret what has taken place. She takes exception … to the fact that she was left in the toilet. That's when she becomes angry and that's when I'd suggest to you that the allegation of rape eventuates. She told you that when I was cross-examining her. He left. 'He left me there. He told me that if I got up he would hurt me. He didn't even bother to help me get over the fence at all.' …That's what she's angry and upset about, not a rape, but being left, being used, but I'd suggest that at the time of the intercourse that's entirely different. At that point in time she is consenting and she is a willing participant. It's only later when she's regretting what's happened. That's when she says that she's been raped." [Emphasis added.]
Shortly after, and at the very end of her closing address, defence counsel said:
"They [the accused and the complainant] engage in relatively quick, without or with very little foreplay, the two acts of intercourse, but she is consenting to those and Mr Wilson leaves her in the toilet.
This is when regret sets in and where the allegation of rape arises. She says as much when she goes to the house in Tolosa Street. She says she's been raped and she has no way of getting home. Her demeanour and presentation in Tolosa Street is equally consistent with regret and with being upset about having been left without a means of getting home, and being dumped there as it is with any rape having occurred. She isn't asking for the police to be called. She's saying, I've been raped, I want to get home. Ms D regrets that she consented to intercourse, but she regrets because of what happens afterwards, and that in my submission to you is not rape. " [Emphasis added.]
In his summing-up, the trial judge directed the jury as to the way in which it should approach the evidence about Ms D's complaint shortly after the incident. His Honour told the jury it would need to consider what was said, when it was said, and Ms D's state at the time. His Honour pointed out that the defence case was that the complainant had gone to the house because she saw activity, did not have a phone, and wanted to go home. That is why she went there. His Honour continued:
"So considering how significantly probative the evidence of that complaint is, you'd need also to consider what [defence counsel] said to you about other reasons why she might have gone to the house and said what she said."
In summarising the defence case, his Honour referred to arguments put about the significance of injury to the complainant's genitalia. His Honour continued:
[Defence counsel] said consent is the primary focus, but it's consent at the time of intercourse, not later on because you regret that it occurred. Later regret doesn't equal rape, [defence counsel] said. She said Ms D took offence at being left in the toilet, and that is when she started to concoct a story of rape. [Defence counsel] said that she was angry because she'd been left and she'd been used."
At the time the trial judge asked the jury to retire and consider its verdict, he said he might need to bring the jurors back if there was something he needed to add to what he had said, but that would only be in a few minutes. In the absence of the jury Crown counsel referred to that part of defence counsel's address in which there was a suggested motive for lying; that is, that the complainant had been left. Crown counsel said that this had not been put to the complainant, so that she had no opportunity to answer it. Crown counsel submitted that the jury should be told that it was not put to the complainant, she did not have an opportunity to answer, and that this may affect the weight given to any assertion about motive that had been argued.
Defence counsel did not suggest that the matter had been put. She told the trial judge, "not as an excuse", that they were getting to the end of the cross-examination, the complainant was getting upset again, and "I think I basically left it at the incident in the toilets". His Honour then said he would bring the jury back and "tell them about that". Neither counsel made any submissions as to what may be an appropriate direction to the jury, nor were they invited to do so.
After that short discussion, his Honour said to the jury:
"Thanks, ladies and gentlemen, there's just been one thing pointed out to me that I should mention to you, that is this: that when [defence counsel] was addressing you she said that Ms D became annoyed at being left in the toilet block and that that's when she started making up an allegation of rape as it were because she was offended at having been left in that way. In fact, [defence counsel] didn't ever expressly put that to Ms D, she didn't ever say to Ms D, 'Ms D, you became annoyed because you were left and that's the reason you have made up this allegation of rape'.
So you have heard [defence counsel] has made that submission to you but you might think that the weight of that submission is very significantly diminished because Ms D wasn't given an opportunity to comment on it. Is that clear? …
All right. Thanks, ladies and gentlemen." [Emphasis added.]

A preliminary point

The respondent submits that the impugned remarks of the trial judge did not amount to a direction in law, but to an observation. The consequences which may flow from that were not stated. It is not clear whether the respondent says that is a complete answer, or whether it simply says that the remarks have to be examined in that light. In any event, counsel for the respondent argues that put in context, the remarks were simply comments about the facts. The context referred to was identified as the trial judge's directions at the beginning of his summing-up. His Honour made it clear to the jurors that they were the finders of fact, and nothing he said to them was in any way intended to persuade them to a particular point of view. His Honour said that it was not his job to have anything to do with the facts, that he was not in the jury room, and it was not his intention to hint to the jurors one way or the other what he might think if he were a member of the jury. He went on to say that he would direct them on the law, and they had to accept what he said about that.
The preliminary issue can be disposed of by reference to the judgment of Smith AJA, with whom Phillips CJ and Southwell AJA agreed, in R v McDowell [1997] 1 VR 473 at 481. The rule in Browne v Dunn was an issue in that case; also a case of rape. The trial judge took the view that defence counsel had failed to put to the complainant a theory regarding a bruise that had been elicited in cross-examination from a medical practitioner. The trial judge described his remarks to the jury about the issue as "comments", and stressing that what he had said was by way of comment; a comment by him. Smith AJA said:
"What becomes critical is the direction by his Honour and his Honour's comments and whether they demonstrated that his Honour erred. I use the word 'direction' advisedly, for although the judge prefaced his remarks by stating that he wanted to comment upon the matter, and thereafter in the course of his remarks several times used the word 'comment', to the extent that the judge's remarks constituted an invitation to the jury to use in a certain manner the failure to cross-examine, then the remarks amounted to a direction that it is open to the jury so to use them."
A similar approach was taken by Redlich JA (with whom Callaway JA and Smith AJA agreed) in R v Rajakaruna (No 2) [2006] VSCA 277, 15 VR 592 at [53]. I would apply that approach to this case. What the trial judge said in this case can be properly described as a direction that as a matter of law, the jury may use the failure to put the issue in a particular way; that is, it was open to the jury to treat the weight of the submission as very significantly diminished. The real question is whether that direction caused a miscarriage of justice. A miscarriage of justice will have occurred if an accused may have lost a chance of acquittal, fairly open.

The appellant's submissions

The appellant complains about what was not said, and about what was said. The appellant submits that the trial judge's direction was inadequate for the purpose of properly addressing the issue that had arisen, and was misleadingly wrong in its terms. The first point argued is that it was inadequate because the trial judge simply pointed out the failure to put the proposition to the complainant, leading to a real risk that the jury drew an inference adverse to the accused's interests. The appellant says that the trial judge should have explained to the jury that there may be a number of explanations for counsel's failure to put the issue, and give some examples of those possible reasons. The second point is that the direction was wrong because it amounted to a direction that the jury should not give any weight at all to the submission made by defence counsel. This was not raised in the appellant's written submissions, but emerged in oral argument.
The appellant accepts that there is a wide range of sanctions available where there has been a breach of the rule in Browne v Dunn, and that a trial judge must demonstrate flexibility in responding to the particular problem: Khamis v The Queen [2010] NSWCCA 179 per Wheely J at [42]. However, the appellant submits that great caution is required in giving directions to juries about the failure of an accused's counsel to comply with the rule: RWB v The Queen [2010] NSWCCA 147, 202 A Crim R 209 per Simpson J at [101]; Khamis at [46]. There is no reason to doubt that proposition.
For the argument that the trial judge ought to have referred to the possibility of a number of explanations for counsel's failure, the appellant relies on a number of cases commencing with R v Manunta (1989) 54 SASR 17. That case involved a failure to put several matters to police witnesses about which evidence was given in the defence case, and the trial judge's directions about the possible inferences to be drawn from that failure. King CJ (with whom Bollen J agreed) said at 23-24:
"It is legitimate, of course, to draw appropriate conclusions from counsel's failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial and such considerations may not enter spontaneously into their minds. Whether such matters should be brought to the attention of the jury and the manner in which that should be done are matters for decision by the trial judge in the atmosphere of the trial."

The next case relied on is R v Abdallah (2001) 121 A Crim R 46. In that case, the issue arose because of a significant inconsistency between defence counsel's opening, and the accused's evidence. Sheller JA (with whom Dowd and Kirby JJ agreed) referred to R v Birks (1990) 19 NSWLR 677, and to Manunta. I should say something about Birks. It was a sexual offence case in which counsel for the accused had failed to put matters to the complainant about which the accused later gave evidence. At 691–692, Gleeson CJ adopted the views of King CJ in Manunta. His Honour also pointed out that a particular matter that makes it difficult to use the conduct of counsel as a basis for drawing inferences of fact is that most jurors are unaware of the wide discretion available to counsel in the conduct of a trial, and that it may be easy for a jury to assume that counsel is "some kind of 'mouthpiece' for the client, conducting the case in close conformity with the client's directions".
In Abdallah at [24], Sheller JA said that the point made in Birks and Manunta was that where there was a situation of a discrepancy between what is said or done by counsel, and by the accused, "… it is necessary for the trial judge to draw the attention of the jury to other possible causes of the inconsistency. Otherwise there is a real danger that the jury, lacking any detailed knowledge of the process of the trial preparation, may assume that the cause of the inconsistency must be that the accused has changed his or her story".
In a further case relied on by the appellant, R v Banic [2004] NSWCCA 322, Barr J (with whom Spigelman CJ and Hoeben J agreed) said at [27] that if a trial judge is directing a jury about the failure of counsel to put a proposition to a witness, it will usually be desirable for the jury also to be told that there may often be reasons, of which the jury is unaware, why such a thing was not done. Similar sentiments are expressed in RWB (above) at [101]. Simpson J succinctly observed that more than one inference can be drawn for non-compliance with the rule in Browne v Dunn.
As to the second limb of the submission, little more needs to be said. The appellant argues that there is a real risk that the jury understood the direction as meaning it should dismiss the possibility of any weight being attributed to counsel's argument. In short, it is argued that the jurors would have understood what his Honour said, to mean that they should not have any regard to the argument at all.

Was there a miscarriage of justice?

I will deal with the first point of the submission. For an appellate court to intervene, the risk of miscarriage of justice must be real, and not fanciful. It is not enough to conclude that a particular direction would have been desirable; it must be shown to have been necessary in order to avoid the risk of a miscarriage of justice: BRS v The Queen (1997) 191 CLR 275 per Kirby J at 330; R v Heinze [2005] VSCA 124, 153 A Crim R 138 per Eames JA at [27].
With the exception of Khamis, all of the abovementioned cases, cited by the appellant, involve the situation in which the breach of the rule in Browne v Dunn was said to affect the credibility of the accused. In each case, there was an inconsistency or discrepancy between conduct or statements by the accused's counsel, and evidence given by or on behalf of the accused. (Khamis involved what was held to be the wrongful rejection of evidence on a point which had not been put to prosecution witnesses.)
There is a recognised distinction between a case where the breach is said to affect only the weight or cogency of an argument based on the matter not put, and a situation where the breach is said to affect the credibility of the accused or witness: R v Morrow [2009] VSCA 291, 26 VR 526 per Redlich JA (with whom Lasry AJA agreed) at [59]-[62]. The present case involves the situation in which the breach of the rule is said only to affect the weight of an argument put in defence counsel's closing address. The appellant did not give evidence, and did not adduce any. Because the appellant, by the conduct of his case at trial, effectively abandoned reliance on the exculpatory statements made in the police interview, the credibility of those statements was not an issue. In fact, the critical ones were relied on as evidence of consciousness of guilt.
The matters that were not put to the complainant related to a motive for her to lie about having had consensual sex with the appellant. There was evidence of the underlying fact of being left in the toilet, but neither the complainant's suggested response to that event, nor that the suggested lie was based on those things, was put. Facts pointing to a motive to lie can be established in the ordinary way. That a person responded in a certain way and acted on a motive involves a state of mind. Such a state of mind is not capable of direct proof, other than, perhaps, by an admission of the person concerned. The state of mind may be proved by evidence from which it can be inferred. However, as the respondent submits, the suggested state of mind of the complainant is not something that would be expected to be within the appellant's knowledge.
At this point, I should add that there was an additional aspect to the argument about the complainant's motive to lie; one that could possibly stand on its own. It is a matter in respect of which the factual basis had been raised with the complainant and dealt with by Crown counsel in her closing address. It is that the complainant was annoyed with her boyfriend, agreed to go with the appellant and to have sex with him, but immediately regretted it. When the issue of fabrication is first mentioned in defence counsel's closing address, there is reference to the "beginnings" of regret, and then to the complainant taking exception to the way she was treated. At the end of the closing address, counsel mentioned both the issue of regret and that of being upset about having been left without a means of getting home.
It is these circumstances in which the consequences of non-compliance with the rule, and whether the trial judge's direction was a misdirection causing a miscarriage of justice, need to be considered. As noted above, in criminal proceedings the rule in Browne v Dunn has to be applied with considerable care, bearing in mind the nature of the proceedings, which is accusatorial as well as adversarial: MJW v The Queen [2005] HCA 74, 222 ALJR 436 per Gleeson CJ and Heydon J at [18], Gummow, Kirby and Callinan JJ at [40].
In R v Foley [2000] 1 Qd R 209, the Court (De Jersey CJ, Thomas JA, Derrington J) said at 291 that while variations in circumstances of particular cases may call for different responses:
"[I]t is now generally recognised in criminal trials that in summing up on this issue, the judge should simply point out to the jury that the particular matter was not put to the relevant witness; that it should have been put so that the witness could have the opportunity of dealing with the suggestion; and that the witness has been deprived of the opportunity to give that evidence and that the court has similarly been deprived of receiving it. There will be exceptional cases where it is necessary to go further, for example where there seems to be a tenable case of recent invention."
Later, at 292, their Honours said:
"If then a jury is to be instructed in a way which will permit adverse inferences to be drawn against the credibility of a defence witness, there must be at least some explanation of these factors, and particular mention of the possibility of other explanations such as misunderstanding or error on the part of counsel."
Where a breach of the rule is said to affect only weight, the jury may be told that the failure bears upon the weight it attaches to the allegation of the fact that was not pursued, or the argument which rests upon that fact: R v Morrow (above) per Redlich JA at [60]. Redlich JA referred to R v Ferguson [2009] VSCA 198, 24 VR 51. In that case the situation was as it is here; it was sought to address the jury on a basis that ought to have been put in cross-examination. At [277]-[278], the court (Maxwell P, Buchanan and Weinberg JJA), said:
"… In some cases, the only way in which the matter can be dealt with is by a direction to the jury in strong terms that it was not open to counsel, in the course of his or her final address, to advance a particular submission, while leaving it to the jury, in the final analysis to resolve the issue of fact concerned.
The course adopted by his Honour in the present case was an intermediate one. He invited the jury, when reflecting upon the defence submission that the police had not carried out a proper investigation, to consider the fact that that suggestion had not been put to any of the investigating officers. He did not comment strongly upon the failure to comply with the rule, as he might have done. In our view, the course adopted was appropriate to secure the object of remedying the unfairness, without making the trial unfair …".
What I have said so far is sufficient to dispose of the appellant's first point. The statements in cases such as Manunta do not have universal application. There was no cause for the trial judge to explain the role of counsel, and explore the possibilities as to why the matter was not put. There is no basis on which it can be said it was an error not to do so. In fact, to do so may have been unwise. In this case, talking about counsel's duties and about what ought to have been put and was not, would focus on the issue of motive for the complainant to lie. It is not unreasonable to suggest that this would run the risk of implying that the appellant bore an onus; that he needed to suggest or produce evidence of motive. See generally Palmer v The Queen (1998) 193 CLR 1 at [9], [102]; R v Coss [2016] QCA 44, and R v Knight [2017] QCA 98. It has to be borne in mind that the question of why would the complainant lie "usually hovers over cases of this nature": R v F (1995) 83 A Crim R 502 at 511.
That brings me to the appellant's second point. Ordinarily at least, if there is a failure by defence counsel to expressly put a suggestion to a witness, it does not follow that an argument based on the suggestion cannot be put to a jury: MJW (above) per Gleeson CJ and Heydon J at [20]; R v Rajakaruna (No 2) (above) at [48]; CMG v The Queen [2013] VSCA 243, 234 A Crim R 455 per Redlich JA (with whom Warren CJ agreed) at [71]. A trial judge is not entitled, by reason of non-compliance with the rule, to withdraw an issue of fact from the jury: R v Costi (1987) 48 SASR 269 per King CJ at 271; CMG (above) at [72].
As is made clear in the passage from Ferguson set out above, a trial judge may comment strongly on a failure to comply with the rule. This proposition extends to the consequences of non-compliance, and a trial judge may comment in strong terms about the weight the jury gives to an argument where the facts were not raised with the witness: McDowell (above) at 482, Rajakaruna (No 2) (above) at [48], Morrow (above) at [61], and CMG at [72] where Redlich JA referred to an entitlement to direct the jury in "the strongest terms".
Of course, each case depends on its facts, but CMG provides a useful guide to the tolerable limits of the strength of a trial judge's comments. It was a sexual offence case in which two arguments were pursued in defence counsel's closing that had not been raised with the complainant or other witnesses. The trial judge raised her concerns with defence counsel during an adjournment. The arguments were not pursued (leading to a complaint on appeal that defence counsel had been prohibited from doing so), but enough had been said to lead the trial judge to comment on the matters in summing-up.
As to one issue, her Honour commented on the absence of relevant evidence. On the other issue, the trial judge told the jurors that they "should be most cautious in accepting [counsel's] submission", and that they "should treat that part of his address with extreme caution". Her Honour added comments about the state of the evidence that might be taken as countering counsel's arguments, and said that those were matters for the jurors to take into account. It was held that the jury would not have understood the trial judge to have withdrawn the issues of fact from its consideration: Redlich JA at [74], Coghlan JA at [216]. (Coghlan JA observed that some of her Honour's comments about the evidence were "not particularly desirable", but said that he did not believe they could have misled the jury.)
Accordingly, in this case, the trial judge was quite entitled to make a strong comment on the weight that the jury might give to the argument. Earlier in the summing-up, in relation to acting on the evidence, his Honour carefully and properly explained to the jury what the concept of "weight" meant. In the impugned direction, his Honour said that the jurors "might think" the weight of the argument was significantly diminished. There is no real reason to think that the jury did not take his Honour's words literally, and that they misunderstood his Honour to say that they should treat the weight of the argument as significantly diminished. His Honour did not say that the argument had no weight, and cannot fairly be taken to have implied that.
With the benefit of calm reflection possessed by an appeal court, it might be said, in light of the strong comment made, that it was desirable for the trial judge to reinforce to the jurors that what weight they gave to the argument was entirely a matter for them, but that they should take into account the failure to raise the issue with the complainant. However, desirability is not the test. In the context of the whole of the summing-up, what his Honour said was not misleading and cannot be said to have given rise to a miscarriage of justice.
For those reasons, I would dismiss the appeal.