Wyatt, M.R. v The Queen

[1992] FCA 284

Re: MICHAEL ROBERT WYATT
And: THE QUEEN
No. ACT G73 of 1991
FED No. 284
Criminal Law and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Beaumont(1), Miles(1) and Von Doussa(1) JJ.

CATCHWORDS

Criminal law and procedure - jurisdiction, practices and procedure - Judge's summing up - whether summing up as a whole was unfair to appellant - summing up did not refer to the fact that appellant gave sworn evidence - whether this itself unfair.

HEARING

CANBERRA

#DATE 13:5:1992

Counsel and Solicitors Mr O'Donnell instructed by
for the Appellant : C.J. Staniforth

Counsel and Solicitors Mr Ibbotson instructed by the
for Respondent: : Director of Public Prosecutions

ORDER

The appeal is dismissed.

Note: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

The appellant was charged in the Supreme Court of the Australian Capital Territory with engaging in sexual intercourse without consent (on two counts), unlawful assault with intent to engage in sexual intercourse and committing an act of indecency without consent. The case for the prosecution was that, at approximately 6.00 a.m. on 5 January 1990, the appellant forcibly raped and assaulted the complainant in a public toilet whilst threatening her with violence. The appellant gave sworn evidence contradicting the complainant's version of the events in significant respects. He said that the sexual intercourse which took place occurred with the consent and at the explicit invitation, of the complainant. The jury found the appellant guilty on each of the charges.

1. The appellant now appeals from these convictions on the ground that the summing up of the trial Judge was fundamentally defective. On behalf of the appellant, it is submitted that the summing up was "unbalanced, unfair and considerably slanted against the accused" in the sense explained by Barwick C.J., McTiernan and Owen JJ. in Green v The Queen (1971) 126 CLR 28 at 34. It is contended, on behalf of the appellant, that the summing up was "emotive, argumentative and entered the arena of advocacy." These complaints are made, not only with respect to the summing up as a whole, but also in certain particular respects to which we will first refer.
   1. The treatment of the defence case with respect to the absence of hair with attached sheath cells

2. This was the major complaint made on behalf of the appellant. The prosecution case was that the appellant grabbed the complainant from behind by the hair and forced her to walk to a toilet block nearby, where he pushed her into a wall in the toilet block, hitting her against the wall. He then assaulted and forcibly raped her. By the first count in the indictment, the Crown alleged that the appellant forced the complainant to engage in oral sex. The second count alleged vaginal intercourse without consent. In the third count, the prosecution alleged assault with intention to rape by taking hold of the complainant by the hair, walking her to the toilet block, throwing her against the wall and telling her to take some of her clothes off. By the fourth count, the Crown alleged that the appellant took hold of the complainant's hand and forced her to put it on his penis.

3. The evidence of the complainant was that, in forcing her to have sexual intercourse, the appellant pulled her head down by the hair, by applying "brute force". At the trial, counsel for the appellant sought to challenge this evidence. He cross-examined Kim Francis, a constable of the Australian Federal Police attached to the crime scene examination branch called by the prosecution, as follows:
   

"Were you looking for fallen hair?---Fallen hair? Hair, h-a-i-r?---I was just looking for everything when I got there. I was open-minded when I got there as to what I'd find.

Well, were you aware of an allegation that the complainant had been forcibly taken to the toilets by the hair; and subsequently forcibly made to perform oral sex, her head being moved against her will by the hair?---I didn't know the full details of the - what the matter was. Did you know the gist of that?---I really don't recall, sorry.

Well, were you just going there on pot luck, or were you going there to examine the scene scientifically, or collect evidence for scientific examination; what were you doing?-- -I was going there to examine the scene and collect evidence for scientific examination.

And do you know the significance of hair if it exists, or is left at the scene of a sexual assault?---Yes. And is there any significant difference between hair that is - that falls naturally from the body, and hair that is pulled as a result of an application of force?---I believe there is, but I'm not an expert on that matter. Well, are you aware generally, for example, that hair that is pulled comes away with the sheath cells still attached to the root of the hair?---I'd have to get an expert to comment on that."

1. Later, counsel for the appellant put the following to Constable Francis:
   

"You know the relevance of hair?---Yes.

Do you know the relevance of the difference between hair that is naturally shed from a body, and hair that is forcibly pulled from someone's body?---I'm sorry, I still don't understand what you're getting at. Well, I'm asking you were you aware that in the circumstances where an allegation of forced oral sex and the forcible taking of the person, in both circumstances using - taking the person by the hair, were you aware that that may lead to the leaving of some evidence at the scene of the crime?---I know there is probably a difference between hair being pulled out and hair shedding and I went there to collect hair - - -

You were there to - - -?- - -along with any other evidence available.

All right, so you were looking for hair, were you?---I was looking for everything that was available. I was very open minded when I went there.

And did you find any hair?---No, none that was of relevance. But you looked carefully?---I looked, yes. And whereabouts did you look?---I looked inside the toilet block.

I know we're probably agreed it's not the nicest, the most pleasant place in Canberra but did you look carefully and in a detailed way?---Yes, I looked through the urinal, around the toilet block, the actual toilet area itself, around the wash basin area and in the entrance way."

1. Counsel went on to cross-examine as follows:
   

"Were her outer garments examined for things like fallen or forcibly pulled hair?---Not - no.

Why was that? Why weren't her outer garments examined?--- I've no idea, sorry. They just weren't. Just as a general proposition in relation to scene of crime examination and the medical examination is the same sort of proposition, would you agree with that---Sorry? The medical examination is the same sort of concept as scene of crime examination. You were trying to find objective evidence that forensically may prove or disprove an allegation, would that be right?---The medical examination she underwent?

Yes?---Yes.

And it's directed towards the same sorts of purposes as your scene of crime investigation, isn't it? It's to get independent physical evidence that could be tested scientifically to see whether the allegations are likely to be true or not, is that right?---That's correct, yes. And the fundamental principle underlying all of this, I suggest, is one of common sense but it's got a fancy name - it's called the Locard exchange principle. Would that be right?---Yes.

(Emphasis added)

And that means, in simple terms, that if a person moves through a place part of the place or the environment attaches to the person and part of the person attaches to the environment through which he or she moves, would that be right?---Yes, basically.

That's basically what it's about, isn't it?---Yes. And that's one aspect, also, of the medical examination, isn't it? To preserve any parts of the scene of crime that may become attached to the body or the clothing of persons who were at the scene of crime. Would you agree with that?- --Of the medical examination?

Yes?---Yes, I suppose - - -

The reason why you're using - - -

HIS HONOUR: Constable, if you don't know the answer to these questions, your answer should be, 'I don't know'?--- Yes.

If you do know the answer to the question then you should give the answer. I just remind you that if you don't know the answer there's nothing wrong with saying, 'I don't know.' Do you follow that?---Yes.

MR O'DONNELL: But in any event a drop sheet was used with a view to gathering things, objects that may be attached to the complainant's body or clothing, would that be right?---I wasn't in there when the examination took place. But you are aware of what is in an SAIK - - - HIS HONOUR: It's got to be hearsay, hasn't it, Mr. O'Donnell?

MR O'DONNELL: The question I was going to ask was more general, your Honour.

You're aware of what's in the kit?---There was no drop sheet in the kit itself.

All right. I'll wait for another witness. HIS HONOUR: It'd be a good idea.

MR O'DONNELL: In any event you found no evidence of any pulled hair in any of your investigations, is that right?--- That's right."

1. Counsel for the appellant also cross-examined Virginia Friedman, a forensic biologist called by the prosecution, as follows:
   

"Just from your general background as a biologist, and if you can't answer simply say so, is it the case that hairs that are pulled rather than shed come with what is known as sheath cells attached to the root of the hair?---I think hairs that are pulled tend to - are more likely to have sheath cells attached to them, yes; rather than ones that are shed naturally.

And there is a known area of biological and scientific expertise, where hair is examined microscopically, both in terms of - or it's structured to see whether it's animal or human, dyed or otherwise, various styles and coarsenesses, and also as to whether or not there are root cells attached?---One can determine those characteristics microscopically, yes.

And that is an examination that is carried out by forensic biologists - not necessarily by yourself but throughout Australia and the world?---Our laboratory no longer undertakes that examination, no.

But others do?---Some laboratories I believe do."

1. Detective Sergeant David Baker, who was in charge of the police investigation of the matter, was also cross-examined on the point by counsel for the appellant as follows:
   

"...did you - have you ever had the opportunity to look at the clothing, particularly the top of the complainant, the black cotton top?---I saw it while the complainant was wearing it, but I haven't seen it since. Did it have any hairs or her own, they would be long medium brown hairs, probably attaching to her clothing, in any numbers at all?---Not that I noticed.

And at the time that the Scene of Crime investigators went out there had been a briefing between yourself and the Scene of Crime police officer?---No, that's not the way it happened. I went out there in - I went to the scene in company with Constable Francis and she took photographs at my direction and we made an examination of the scene together.

Right, now, at that scene did you see any pulled hairs, hairs that might have had root cells attached or any indeed - long medium brown hairs on the floor of the toilet?---No."

1. No expert evidence on these matters was called in the defence case. However, in his address to the jury, counsel for the appellant referred to the "Locard" theory and relied on the absence from the evidence of material indicating the presence of hair with attached sheath cells on the complainant's clothes or on the floor of the toilets.

2. In his summing up, the trial Judge said:
   

"It does not matter whether there was no hair lying about in the - the Crown does not have to prove beyond reasonable doubt that there was hair lying about in the toilet block and it has failed to prove it because the police officers did not find any...I mean they are all matters that certainly, they are relevant, but if you are unable to say then it really does not matter, you might think."

1. His Honour went on to say:
   

"Mr O'Donnell who appears for the accused has made a lot about the absence of hair in the toilet and some system that he knows of called the Locard exchange principle, and he has put to you, there should be evidence of hair. Well, that might sound very clever, if there was any evidence that he ever pulled her hair. She never described what happened to her hair as her hair being pulled or her hair being pulled out. Her evidence is: I was grabbed from behind by the hair. Where abouts in the hair were you grabbed?--- Like this from behind.

(Emphasis added)

And she said:

I was more or less man-handled across the street towards a brown car that was in the car park at Haig Park. I thought we were going to this car but we went beyond the car.

Now, she demonstrated to you how he grabbed her and you remember she put her hand around the back of her head like that."

1. The Judge then referred to the further details of the complainant's evidence that the appellant:
   

"...got very angry again and he was calling me a slut and a mole then pulled me down like this by the hair."

1. His Honour continued:
   

"And do you remember what she did then?

Pulled me down like this by the hair. And she put both her hands on her head towards the back of her hair and she was asked - and Mr O'Donnell described it, 'Almost as two pig tails,' which was an accurate description."

1. Later in the summing up, his Honour said:
   

"I think I've dealt with the allegation or the submission to you that you'd expect hair to be in the toilet block and that (the complainant) had said that her hair was pulled. Well, I've read to you the passages. At no stage did she say that her hair was pulled. Indeed, she has said that as to the initial taking to the toilet block, she was pushed, and that he put both hands on her hair and pulled her head down towards his penis."

1. It is now submitted, on behalf of the appellant, that the summing up was unfair because it dismissed as "very clever" the contention, which, the argument ran, was supported by admissible evidence that the absence of hair with attached sheath cells was a significant matter to be taken into account by the jury.

2. We have difficulty in accepting the submission.

3. It is true that, in her evidence, Mrs Freidman expressed the opinion that hairs that are pulled are more likely to have sheath cells attached to them than hairs that are shed naturally. It is also true that Constable Francis agreed with Mr O'Donnell that if a person moves through a place, part of the person attaches to that environment. It will be recalled that Mr O'Donnell referred to this in his cross-examination as "common sense". He also then mentioned the "Locard exchange principle" in his cross-examination, describing it as a "fancy name". Counsel's description of the name as "fancy" could explain why the Judge said that the reference to the Locard exchange principle "might sound very clever".

4. The point sought to be made on behalf of the appellant at the trial has to be assessed in the light of unchallenged evidence from a police officer that at about 7.30 a.m. on the morning of 5 January, the complainant's hair was "extremely messy". There was similar evidence, also unchallenged, from another police officer. Moreover, as the Judge said, it was never part of the complainant's version of the incident that the appellant pulled her hair out. She was cross-examined as follows:
   

"...when the accused took you by the hair, did he apply - you described it as brute force, is that right?---Yes. Did any of your hair come out? Did any of your hair pull out of the scalp?---At the time I wasn't paying attention to whether hair was falling out of my scalp. Afterwards, definitely it was, when I'd brush it - I mean a couple of days afterwards. You know, when I would brush it, yes, it would come out, but at the time I didn't notice. Was it sort of falling out loosely for a couple of days afterwards, was it?---Yes, sir."

1. We are not persuaded that, in these respects, the summing up was unfair or otherwise defective.

2. It may be accepted that the reference by the Judge to the Locard exchange principle as "sound(ing) very clever" could perhaps be seen as somewhat dismissive of the use of technical jargon, but, as has been noted, counsel for the appellant himself described it as common sense under a "fancy" name. Further, in our view, it was not unfair for his Honour to point out to the jury that it might be difficult to apply the Locard theory in the circumstances of the case at hand.
   2. The treatment of the defence case with respect to alleged inconsistencies in the complainant's evidence

3. Counsel for the appellant referred us to the evidence given by the complainant on several matters in respect of which, counsel contended, there were some apparent inconsistencies in her version of the events. Having read the whole of the evidence, we are not persuaded of the existence of any significant discrepancies in the evidence given by the complainant. We are not persuaded that there was any unfairness to the appellant in this regard. The summing up was a full one and, we think, adequate.
   3. The summing up did not refer to the fact that the appellant gave sworn evidence:

4. His Honour said of the appellant's case:
   

"...his case, as you understand it is, that he was not the least bit interested in her and then he found her up behind him and she raised this question of money and he never intended to pay her any money, and that the intercourse took place because she initiated it, but he still was not going to pay her any money and he did not.

Well, you saw him in the witness box, you have got to make a judgement about him. How reliable do you think he is in what he said. Remember, he does not have to prove anything, but if you think he was telling you a lot of lies, then you are entitled to put that in the balance, if you are satisfied that they were deliberate lies, conscious lies, made for the purpose of extricating himself, then that helps the crown case. But you would have to be satisfied beyond reasonable doubt that he was actually lying."

1. In Re Robinson and Tiplady (1985) 123 LSJS 37 SA, a direction to a jury not to give credit to an accused because he elected to give evidence instead of making an unsworn statement was held to be a misdirection. King C.J. said (at 2):
   

"It is true, of course, that a trial judge is not required to commend a witness for having given evidence on oath. He is perfectly entitled, if he sees fit, to say nothing by way of commendation or, indeed, by way of reference at all to any merit or demerit which might be involved in the course which the accused person adopts in the presentation of his defence."

1. We agree. But the summing up here was not deficient in this sense.

2. As we have said, it is submitted, on behalf of the appellant, that when the summing up is considered as a whole, it lacked balance. Our attention was drawn, in particular, to some parts of the summing up which we were invited to hear on the official court tapes. We have considered this material, but we have not been persuaded that the summing up was unfair to the appellant.

1. In the result, the appeal will be dismissed.