The Queen v Chevathen[1997] QCA 339

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane

C.A. No.222 of 1997

[R. v. Chevathen]

THE QUEEN

v.

TREVOR CHARLES PALMER CHEVATHEN

Appellant

Davies JA

Shepherdson J

White J

Judgment delivered 3 October 1997

Separate reasons for judgment for each member of the Court, each concurring as to order made.

APPEAL DISMISSED

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 3 October 1997

I have had the advantage of reading the reasons for judgment of Shepherdson J. with which I generally agree.  I wish only to add some brief observations of my own.

The first relates to the evidence relating to the complainant's forehead injury, relied on as corroboration.  Although Dr. Valena, who examined the complainant at 6.10 a.m. on 24 February 1996, agreed in cross-examination that what he observed to the complainant's face was equally consistent with a blow struck during a fight with a woman during the course of the night as with the incident involving the appellant, he had earlier said that the injury to the forehead had been sustained within a couple of hours before his examination.  This was arguably consistent in time with its having occurred during the course of the rape incident but plainly inconsistent in time with its having occurred during the fight which took place much earlier in the night.  In directing the jury to the appellant's proposition that the injury to the forehead may have occurred during that fight, without reference to that evidence of Dr. Valena, the learned trial Judge expressed himself in a way which was too favourable to the appellant.

My second observation relates to the primary contention, not that the matters referred to by the learned trial Judge as corroboration were not capable of constituting corroboration or that they were not in fact corroborative, or even that the learned trial Judge's directions on corroboration were wrong, but that in failing to outline fully the evidence of and arguments put on behalf of the appellant the summing up was unbalanced to his prejudice.  It appears to be implicit in that submission that, in every case, a trial judge must, in substance, put to the jury all of the evidence favourable to the accused and the submissions made on his behalf, however the trial may have been conducted, including however extensively and forcefully these may have been put, only a short time before, by his counsel.  That is plainly not a trial judge's obligation.  See R. v. Morex Meat Australia Pty. Ltd. and Doube [1996] 1 Qd.R. 418 at 420.  What constitutes a clear and fair presentation of the defence case will depend very much on the circumstances of the case, including the way in which it has been conducted.

This case involved three accused each charged with three counts jointly and two other counts against the appellant.  There were 18 witnesses and the trial occupied six days.  The learned trial Judge was entitled to think, as he plainly did, that the jury would be likely to better understand the evidence if his summing up was brief and relatively simple, particularly bearing in mind that he had to give directions with respect to corroboration and identification.  His Honour therefore posed a number of questions upon important factual issues.  It is true that in some cases he did not refer to all of the evidence on those issues and that in some of those cases some of the evidence to which he did not refer was evidence favourable to the appellant.  But that does not prove a lack of balance in the summing up which must be looked at as a whole.  So considered, in my view, it does not lack balance.

Thirdly, when one goes from the general to the particular criticisms of the summing up they do not improve.  Take, for example, the first point relied on in oral argument to show lack of balance; that his Honour should have brought to the attention of the jury that when the appellant was being asked by the police about his activities that night, his memory may have been impaired by alcohol.  But the inconsistencies in his evidence relied on as lies were not such as could have been mistakes and a perusal of his record of interview reveals in him a level of maturity, sophistication, confidence, articulateness and, it might be thought, cunning well beyond his years.  Emphasis on such matters by the learned trial Judge could only have harmed his case.  As can be seen from my first observation a similar point can be made with respect to the summing up with respect to the complainant's facial injury, the second major example submitted to show lack of balance; that a more complete description of it would have required reference to the evidence of Dr. Valena referred to above.

Finally, experienced trial counsel, who heard his Honour's summing up and who sought redirections with respect to corroboration, a point no longer specifically relied on, did not suggest that the summing up lacked balance.  Nor did the notice of appeal raise this point.  It was raised for the first time in the written outline of the appellant.

For these reasons in addition to those referred to in the reasons for judgment of Shepherdson J., I agree that the appeal must be dismissed.

REASONS FOR JUDGMENT - SHEPHERDSON J.

Judgment delivered 3 October 1997

At a trial in the District Court held at Cairns the appellant was convicted on the following charges, all committed on 24 February 1996 at Napranum near Weipa:-

1. Rape upon C.

2. Unlawful and indecent assault on C, that assault consisting wholly of an act of carnal knowledge by anal intercourse.

3. Unlawful and indecent assault on C, that assault consisting in part of the appellant bringing his mouth into contact with the genitalia of C.

4. Rape upon C.

5. Indecent assault upon C consisting in part of penetrating her vagina with his fingers.

6. Unlawful assault on C thereby causing her bodily harm.

He has appealed against these convictions and although his notice of appeal contains six grounds only one was argued before this Court.  That ground, ground 1, although not expressly alleging lack of balance in the summing-up was to the effect that the learned trial judge addressed the jury on a number of matters capable of corroborating the complainant’s evidence, and did so in such a way that the jury could only be led to conclude that the appellant was guilty of the offences.  Thus it was said the summing-up lacked the appropriate balance and the appellant was deprived of a fair trial.

The complainant was 24 years old at trial.  The appellant was 17 years old at the time of the offences and in the first 3 counts was jointly charged with Daniel Anthony Budby (then also 17 years old) and D (then 16 years old).  D was 17 years old at trial.  The Crown case was that each of the offences occurred in the early hours in the morning of Saturday 24 February 1996 in a bedroom of the house of Leonard Charles Gordon at Napranum.  The complainant knew each of the three accused.  She gave evidence that on the Friday night she was “really really drunk”; that before arriving at Gordon’s house she had been to a disco at the local community hall where she was drinking VB and moselle until she left at about 2 am; that she had seen the three accused at the disco but did not talk to them.  In cross-examination the complainant agreed that at the disco she had had a fight with a woman named Sonya Butcher, and this involved punching, kicking and pulling hair, with the complainant at one stage being on the ground being kicked and punched by Sonya.  The complainant said that she was not drunk at the disco and that as a result of being there punched in the forehead she developed a lump.  During her cross-examination the complainant agreed that prior to going to Gordon’s house - Gordon was her uncle - she had been to a party at the home of a man named Rex Wapau.  At trial she did not initially recall this, but her memory was refreshed by answers she had given at committal proceedings at Weipa.  The complainant gave evidence that after arriving at Gordon’s house she went to sleep alone on a single bed in a bedroom.  Her evidence was that the offences occurred in the following circumstances:-

1. before going to sleep she had closed the door but could not lock it;

2. she had gone to sleep wearing the same clothes as she had worn earlier that night;

3. she woke up with no clothes on and found the appellant lying on top of her and the other two accused persons also in the room;

4. she did not know how her clothes had been taken off and she saw the appellant was not wearing any clothes; she was aware that he was lying on top of her having sex with her and pinning her hands to the bed, such that she was unable to move her arms at all;

5. she tried to fight him off but he was too strong, she called for help but background music was playing too loudly for anyone to hear her;

6. each of the other two males - Budby and D, was holding one of her legs and she was on her back;

7. while the two persons Budby and D remained in the bedroom the appellant licked her vagina and forced her to turn over and had anal intercourse with her;

8. throughout this time the complainant said “stop please stop” screamed in pain and was crying;

9. Budby and D left and after they had gone the appellant again had sexual intercourse with her and she could feel the appellant put about four fingers inside her vagina after having said to her “I want to ram my knuckles up you”;

10. the complainant kept telling the appellant to stop and the appellant replied “shut up you bitch”;

11. the accused punched her in the face a number of times and she had a sore eye;

12. the complainant said the appellant took her against the wall wanting to have sex when she was standing and the next thing she knew was he hit her head against the wall “real hard” and she  blacked out;

13. when the complainant woke up she was still naked; she found all her clothing save for her knickers and shirt and so she put on another shirt which she found in a cupboard.

14. she said that her forehead was cut and bleeding;

15. the complainant said she left Gordon’s house and walked to the house of her cousin a lady named Constance Bandicootha.

There present were persons named Phyllis and Ethel Bosuen and Olga George and the complainant in response to Constance’s question “what happened?” said “I’ve been raped”.  The complainant said in effect she had been raped by Trevor, Daniel and Georgie and told Constance “they’d doubled me”.  She agreed the word “doubled” - “can mean being in a fight, if you get doubled like that”.  Constance Bandicootha called the police and ambulance and the complainant was taken to the Weipa hospital.  Constance Bandicootha’s house was in the same street as Gordon’s house - the Bosuens lived next door to Constance.

The appellant gave evidence at the trial.  He denied the complainant’s evidence as to what had happened in the bedroom.  His evidence was as follows:-

1. While he was at Gordon’s house he was coming out of the toilet when the complainant confronted him in the hallway and asked if she could see him; that he interpreted her to be asking for “a date or something” and he replied “no”; that she asked him if he wanted to go into the room where she would perform oral sex on him and he rejected that offer; that she grabbed him by his waist and arm and led him into the room where she sat on the bed in front of him and without saying anything pulled his trousers down and performed oral sex on him; that she then asked if he could have normal sex with her and he said “no” because he thought about a condom and she said “wait here for a second I’ll go to the toilet”; that she went to the toilet and he waited in the room for about 5 minutes; that through the window he then saw a couple of friends including Budby and he left and joined them; that he later saw the complainant and the accused man D, walking along a street kissing and hugging; that the complainant was drunk; that he knew what he had been doing because he had been drinking slowly and that during the day he had shared a carton with four people.

2. That the complainant’s evidence as to his conduct with D and Budby holding her legs were “lies” and he denied all other conduct the complainant had alleged against him.

Constance Bandicootha gave evidence in the Crown case that when she saw the complainant coming to her house she thought she was just drunk coming home.  Constance Bandicootha said the complainant called out to her twice and initially she ignored the complainant but then she called out to the complainant who on reaching her house said “they doubled me” and she, Constance, replied “what, he hit you?”; the complainant then said “no-one hit me they did sex with me” and she gave the names “Trevor, Daniel and George”.  Constance said the complainant was crying and saying she was hurt.  Constance said the complainant and she had spoken earlier that night when she and others including the complainant walked from Wapau’s house to Gordon’s house.

Barbara Bandicootha in evidence said that earlier in the evening she had seen the complainant at Gordon’s house and did not notice her to have cuts or bleeding, but when she saw her later with Constance the complainant was bleeding from a cut just above her eyebrow, although she didn’t take notice whether it was bleeding a lot or a little.

Phyllis Bosuen gave evidence.  She said she knew each of the three accused and the complainant as she had grown up with them all at Napranum.  She spoke of events she saw after the disco (of which she was aware but did not attend).  She said that she saw the appellant in the street wearing a blue and white football jersey and a cap.  She also saw the other two accused.  Phyllis Bosuen said she saw the complainant at 4 am - she fixed this time “because I had a watch on”.  She said the complainant was crying and had a bump on her forehead that was swelling up and “bleeding a bit”.  She noticed the complainant was wearing a different shirt from the one she had seen her wearing earlier.  Bosuen gave other evidence which confirmed the complainant’s fresh complaint to Constance.  Phyllis Bosuen said that when Constance Bandicootha yelled out to the complainant “the three boys started running and we seen Georgie running first followed by Trevor and then Daniel”.  Phyllis Bosuen was not asked about any observation she may have made of the complainant’s forehead earlier in the evening.

Ethel Bosuen in her evidence said she saw the complainant at about 4.30 am and she too confirmed evidence of fresh complaint.  Ethel Bosuen said she had previously seen the complainant at about 11 or 12 o’clock and she had no injury but she did not see her face properly at 4.30 am.  Ethel Bosuen deposed to having known the appellant and the two co-accused since they were born.  She said she saw the appellant and Budby at a fight which lasted from about 12.30 am for 2 hours.

Olga George in her evidence said she was with Phyllis Bosuen and Constance Bandicootha when she saw the complainant walking towards them carrying her black tights and crying, that the complaint said they had double banked her and in response to a question identified the appellant and his co-accused as being responsible, that the complainant said “they raped me at Ivy Gordon’s place” and that she said she had lost her undies and shirt.  Olga George’s evidence in relation to facial injuries was that when she first saw the complainant she was wiping blood from a cut on her forehead, but there was no evidence that she saw her face at any time earlier that evening.

Roberta George gave evidence and said she saw the complainant at Gordon’s place, that she saw her clearly and did not notice whether she had any cuts on her face at all and that when she saw the complainant again at about 3.30 am the complainant was crying and had a cut on her forehead.  Michael George gave evidence that he saw the complainant involved in a fight at the disco, that she was on the floor and was hit in the forehead.  He said he had not seen her up close that night and there was no evidence as to whether or not he saw any bleeding at any time after the fight.

Lynette Adidi said she knew the complainant and each of the three accused.  She was present at Wapau’s house and Gordon’s house and said the appellant had walked with her and others from Wapau’s house to Gordon’s house and she saw the other two accused at Gordon’s house.

Leonard Gordon in evidence said that after Phyllis Bosuen told him the complainant had been raped he went to his mother’s bedroom and found the shirt the complainant had been wearing that night.  He confirmed the fight earlier at the disco between the complainant and Sonya.

The complainant was examined by a doctor at 6.10 am on 24 February and he gave evidence of his findings.  He found no injury to the complainant except to her forehead - he found a laceration about 2 centimetres long to the left forehead and a haematoma on the conjunctiva of her left eye.  In his opinion the laceration occurred within a couple of hours before the examination; there was no profuse bleeding and suturing was not required.  He said moderate force was involved and it would be possible that it was caused by someone having hit their head on a brick wall.  The eye he said involved a blunt injury caused by a mild to moderate degree of force such as a punch.  The examining doctor said anything he observed to the complainant’s face was equally consistent with a blow struck during a fight during the course of the night.

Each of the co-accused Budby and D gave sworn evidence at the trial.  Each denied that he had held one of the complainant’s legs.  Each denied he had gone to Leonard Gordon’s house.  However D gave evidence that he had told the police that the appellant had told him he had been in the room with C and that C had “sucked him”.  He further said that the appellant had told him these things after the disco.

Budby gave evidence that he saw D and C hugging and kissing in the street.  D had earlier given evidence that he did not remember kissing C.

Before turning to the appellant’s complaints concerning the summing-up the following further evidence must be mentioned.

1. An audio-video record of an interview between plain clothes Constable Rudolph of the Cairns CIB and the appellant was made on 25 February 1996.  Senior Constable Bartley and Lorna May Chevathen the appellant’s aunt were present at that interview.  The video malfunctioned but the jury had before them the complete audio tape of this interview.  As that interview shows the appellant was then still at school in year 12.  The transcript shows he was obviously articulate and well able to understand the matters about which he was being interviewed.  He admitted that he was being interviewed about an incident which allegedly took place in the early hours of Saturday morning and that he was being asked to tell the police what he was doing and what had happened on the Friday night.

He gave details of what he had done that evening and where he had been.  It is unnecessary to detail his responses other than to note the following matters appearing in the transcript of the interview:-

1. He denied having gone into Leonard Gordon’s house although he knew the house.

2. He said that he had “got home before one” telling the police that he knew that time “because Prisoner [a TV programme] was on and Aunty Lorna always watched it with me”.  At this stage, according to the transcript, Mrs Chevathen said “I’m a Prisoner fan”.

3. The appellant said he watched TV, got tired, made his bed and went to sleep.

4. The appellant said that en route to his home he saw the complainant and D walking on the road and kissing.

5. When during the record of interview the police put to the appellant the complainant’s version of events concerning the appellant’s conduct he denied the matters put to him.  When police asked him “what rape meant” he replied “having sex without consent”.

6. The police put to the appellant a statement which had been made to them by the co-accused D, in which D said that he had seen the appellant with C in a room and that she was performing oral sex on him and that D had stated that the appellant had told D that.  At interview the appellant denied these matters put to him, but it is fair to say that when giving evidence at the trial he said he had not referred to the oral sex aspect in the record of interview because he was ashamed and because his aunt was with him and he didn’t talk like that in front of her.

Constable Gunson of the Weipa police station, who at the time lived in Napranum gave evidence of the trial.  He spoke of a conversation which he had had with the appellant on 27 March 1996.  Gunson made notes of this conversation which he said opened with the appellant saying “you know I didn’t do it” to which Gunson applied “do what?” and the appellant said “do that rape”.  When Gunson asked him “what rape?” the appellant replied “the one of C, it was Nicky who was last with her”.  Gunson asked “was he charged?” the appellant replied “no” and Gunson said “well did you do anything with her anyway?” and the appellant replied “Oh yeah I did it with her but I had consent”.  Gunson asked “why didn’t you tell anyone” and the appellant replied “I made up the story because I didn’t want to get into trouble”.  In cross-examination the appellant’s counsel elicited from Gunson the fact that the appellant never mentioned anything about oral sex.  When the appellant gave evidence at trial he admitted saying to Gunson something like “Oh yeah I did it with her but I had consent”.  When the appellant was asked whether he accepted “that that’s accurate” he replied:-

“I accept that it is something like that yeah.  I mean what I am saying is I can’t really remember I could have said that but meant something else.  What I couldn’t have said it.  But it all meant the same thing.”

He admitted that he had told Gunson “I made up a story because I didn’t want to get into trouble” and he admitted it when he said “that that was the first time he owned up”.  When asked “That’s the first time you’ve told anyone you’ve lied isn’t it?” he replied “I - I yeah.  That’s the first time I owned up”.  He was then asked “So you accept now that what you told the police in your interview was lies?” and he answered “about one-eighth of it yeah actually it is that part going home.  It was that part that I missed out with C that I had oral sex with.   I left that out because my aunty was in the interview room with me and I didn’t want to offend her I didn’t think I’d have to bring it up.”

The learned trial judge summed-up in a manner in which he did not descend into the fine detail of the evidence which had occupied some 5 days - had he adopted such a course clarity may have been blurred if not lost.

The essence of the appellant’s complaints concerning the summing-up is that the learned trial judge when dealing with matters capable of corroborating the complainant addressed in such a way that the balance was tilted against the accused appellant in such a way that he lost a fair trial.  The relevant matters on which His Honour’s addressed were:-

1. Injuries to the complainant’s face.

Because of the nature of the attack on this summing-up it is best if I quote the actual words used by the learned trial judge.  His Honour said:-

“Evidence will tend to corroborate C if tends [sic] to make a material matter about which she has given evidence more likely to be true.

The first item of evidence to which I want to refer are the injuries sustained to her face and in particular the injury to her forehead.  Just excuse me a moment, I just need to find something.

Members of the jury, you have heard evidence from people other than C that first of all when she came to complain to people that she had been raped, and when she was later seen at the hospital that she showed signs of injuries to her face.  There is the photograph of her.

C has said that while she was in the room with these boys, Trevor punched her about the face and also banged her head into the wall.  So members of the jury, evidence from people other than C that she had these injuries is independent evidence which may tend to corroborate her, back her up, make her statement that she was punched by Trevor and her head banged into the wall more likely to be true.

It may corroborate her if you are satisfied that there is no other way in which she could have got these injuries, on the evidence.  One proposition put forward, members of the jury, is that she got these injuries, or could have got these injuries, during her fight with the other girl at the disco.

There is no doubt, members of the jury, that if the fight was serious enough that she could have sustained injuries during that fight.  But you might think the real point is this, members of the jury, a number of witnesses were in C’s company and saw C after that fight.  Was there anybody who saw her with injuries like that after the fight but before she was in the room at Leonard Gordon’s house?

See, if she sustained the injuries in the fight with the girl, the girl Butcher at the disco, then obviously that can not corroborate what she says.  But if you are satisfied that she did not have those injuries when she went to Leonard Gordon’s house and when she went to that room to go to sleep then you are entitled to take the view, well she must have got those injuries in the room.

If that is the case then the evidence of the independent people who saw those injuries may - you may take the view it tends to support her account of what took place in the room.  Because it is not just the fact that she was punched and had her head banged against the wall in the room, the fact that there was violence done to her suggests that what was taking place in the room was taking place against her will.

That is the way in which those injuries may tend to corroborate her account of what took place.  Obviously it is not a complete mirror image of her account.  It does not tell you exactly everything happened in the room.  Looked at independently it does not tell you that it happened in the room for that matter.”

His Honour did not mention by name other witnesses who saw the complainant after the alleged rape, but I have indicated evidence from a number of the witnesses as to what each of those witnesses had observed of bleeding from a cut or injury to the complainant’s face or forehead.

2. Distressed condition of the complainant.

His Honour said in respect of this:-

“You have heard evidence from witnesses who saw her at what appears to be something in the order of four 4.30 in the morning when she went to Constance Bandicootcchaha (sic).  People who observed her visibly distressed and upset.

Members of the jury, bear in mind that distress and upset can be feigned, it can be put on.  But if you are satisfied that C did display a distressed and upset condition, and if you are satisfied that it was genuine, then you are entitled to take the view that something must have happened to cause her to be distressed and upset.

Well, what was that?  If you are satisfied that the only logical reason, the only reason available on the evidence, the only events which took place available on the evidence, are those that she described as having taken place in the room, if you take the view that the only explanation open on the evidence for her being distressed and upset is that, then once again that is evidence which you may take the view tends to make her account of what took place more likely to be true.

Once again on its own it does not tell you the whole story, it does not back up her whole story, it does not say anything about who was there.  Evidence to be corroborative does not have to prove things independently.  To be corroborative evidence must tend to show that what the complainant is saying is more likely to be true.  It tends to support it in some way.

Obviously if what she is saying did occur in that room than [sic “then’] that was upsetting and distressing to her, and you might think understandably so.  So that is the way in which that evidence may tend to corroborate her, to support her account in the material way.”

3. The torn bra top

The words His Honour used were:-

“You have evidence before you in the way of an exhibit, the torn bra top.  That may suggest that some force was applied to that bra top.  You might think on C’s account that she went into the room and went to sleep she was fully clothed and she was wearing that bra top.

She has told you that she woke up and she was naked.  You would be entitled to draw the inference from that, if you believe her, that her clothes were forcibly removed.  If that is so then it is a possibility that during the course of her clothes being forcibly removed her bra top might be torn.

Is there any other explanation open on the evidence for the bra top being torn?  How else did it get torn?  So if you are satisfied that there is no other explanation, no other possible explanation for the bra top being torn than [sic “then”] that may tend to support C’s account that her clothes, or the inference to be drawn from her account, that her clothes were forcibly removed.”

4. T-shirt

This was the lost shirt and what His Honour said in respect of this was:-

“Similar considerations apply to her T-shirt being found in that room.  It was found by persons other than C.  You have got independent evidence that that T-shirt was left in that room.

Now members of the jury once again it is her account that her clothes were removed without her consent by one or more of these three accused you might think.  Is there any other explanation as to how the shirt she was wearing apparently throughout the evening came to be left in that room and she went off wearing some other shirt?

Her account, as I have said, is that - well the inference to be drawn from her account is that her clothes were removed without her consent.  So you may take the view that that tends to support her account in a material way.

It may be relevant to note, members of the jury, that the only other evidence you have heard about what took place in that room came from Trevor Chevathen.  He says that he was in that room, that she pulled him into the room, performed oral sex on him, and then she left.  There was no suggestion from him that she removed her T-shirt or that her T-shirt was removed during that episode.

So that is a way in which the presence of that T-shirt may tend to corroborate her account.  It is a matter for you.  But if you are satisfied that there is no other explanation for her T-shirt that she was wearing during the evening being left in that room then once again you may take the view, and once again it is a matter for you, that the presence of that T-shirt in the room tends to support her account of what took place in the room.”

5. Lies by the Appellant

The learned trial judge having directed the jury they had to consider the cases against each accused separately dealt with the case against the present appellant in the following words:-

“I do not propose to try to single out any specific words that Trevor Chevathen has said during the course of his interview as part of the lie.  I will put it to you this way.  First of all he did initially deny going to Leonard Gordon’s house when he was being interviewed by the police.  On his own admission that was a lie.

You have heard evidence from people such as Phyllis Bosuen, Olga George, and Constance Bandicootcha, (sic) that at around the time, in fact shortly after C came along distressed and upset and complaining of having been raped, that Trevor Chevathen was observed in the vicinity.

Members of the jury, if they are right, if they are accurate, if they did see him, if you believe them and you are satisfied that they are not mistaken in any way, there is evidence from which you might take the view that Trevor Chevathen told lies to the police in order to try to distance himself, to have himself at home in bed much earlier than he really was.

Two things arise out of that, members of the jury, and I should also say this applies to the other two accused where they also are said, or were said to have been seen by those women.  Those women told you that they saw them.

The question of the reliability of an identification arises, because unless those identifications by those women are reliable then you can not believe that these accused were out and about at that time, then therefore you could not be satisfied that they were telling lies if you think they told the police or tried to tell the police that there were not out and about at that time, that they were in fact home in bed much earlier.

The reason why identification is important is that over the years, over the centuries, some grave miscarriages of justice have occurred because of honest but mistaken identification by a witness.  In other words a witness has said, “He’s the one I saw breaking into the factory.  He’s the one I saw sneaking out of the window of the house at 3 o’clock in the morning.”, and a mistake has been made.  An honest but mistaken identification.

So you have got to approach identification evidence with caution because mistakes can be made.  Because, for instance, people may look alike.  It may only be a fleeting glimpse of someone.  The witness might only have a fleeting glimpse of the person.  You look at how well the witness, the identifying witness, knows the person being identified.

If a number of witnesses all identify the same person, that may make the identification of any one of them more reliable.  It may mean it is less likely that any one of them has made a mistake.  So you look at those things.

In this case, you have evidence that these women have known these boys all their lives.  The boys told the police about the shirts they were wearing, the blue and white jersey in the case of Trevor Chevathen, the grey sleeveless shirt in the case of Daniel Budby - I think it was - and the Rabbitos shirt, the green and red jersey, in the case of D.

Some of the women, at least, were able to say that they saw them, they recognised them and this is what clothes these fellows that they saw in the early hours of the morning on the street near the snack bar were wearing.  So those are the sorts of things you bear in mind in considering whether or not those identifications were accurate.

But if you are satisfied that those women - any one of them - saw Trevor Chevathen at that place at that time, you may take the view that Trevor tried to mislead the police into believing that he was not there, that he was home in bed long before that occurred watching ‘Prisoner’ before he ate some mints and went to bed.

Members of the jury, if he told such a lie, then such a lie may tend to incriminate him.  But you may only use a lie against a person, firstly if you are satisfied that it was a lie; in other words, it was untrue.  Secondly, if you are satisfied that it was a deliberate lie, in other words, not just a mistake or a misunderstanding.  Thirdly, that it was a lie about a material matter, a matter which is material to the charges.  And fourthly, and perhaps most importantly, if you are satisfied that the lie was told because the person telling the lie was conscious of the fact that to tell the truth, would incriminate him in the offence charged.

So members of the jury, taking the example of Trevor Chevathen, if you are satisfied firstly, that Trevor Chevathen did try to mislead the police - did deliberately try to mislead the police into believing that he was home in bed long before he really was.  If you are satisfied that that is material - and you might think it is, because what he was being questioned about was his whereabouts, being at Leonard Gordon’s house and where he might have been.

So it is material as to whether or not he was home or whether or not he was at Leonard Gordon’s house where C was.  So you might think it is material and you can use it against him.  You may think it incriminates him or tends to incriminate him if you are satisfied that he told that lie, tried to mislead the police, because he knew that if he told the truth, that that would tend to incriminate him in the offence.  Because he knew that to tell the truth, would be to admit the commission of the offence.

Bear in mind of course, that sometimes people tell lies for various reasons.  He has told you that he was less than truthful to the police because he was embarrassed about his aunty being there.  If you think that that is the explanation for him telling a lie, well obviously it is not because he has a consciousness of guilt.  There is a legitimate reason why he has told a lie.  Sometimes innocent people will tell lies for fear of being wrongly convicted.

Now bear those things in mind, but as I say, if you are satisfied that he deliberately misled the police to try to convince them that he was home in bed long before he in reality was, and if you are satisfied he did that because he knew that to tell the truth would amount to an admission that he committed the offence, then that is incriminating of him and it is another matter which may tend to corroborate C’s account that he did in fact, commit criminal offences against her.”

The case in each charge against the appellant was a strong one.  It was not, as appellant’s counsel in this Court suggested, a finely balanced one.  At the conclusion of the summing-up the appellant’s counsel at trial - an experienced counsel - raised for the learned trial judge’s consideration for redirections only the matter of corroboration.  He did not suggest that the summing-up lacked balance or was imbalanced against his client.  Trial counsel did not persuade the learned trial judge that he should give redirections concerning the matter of corroboration.  Trial counsel had the atmosphere of the trial.  In R. v. Giffin [1971] Qd. R 12 the Court of Criminal Appeal at p.16 said:-

“As has so often been said, the summing-up must be considered in relation to the atmosphere of the trial, including the addresses of counsel.  Counsel were not able to point to any reported case in which an appellate court has actually quashed a conviction on the grounds of excessive emphasis on evidence against the accused person where there had been no other irregularities in the conduct of the trial.  Usually where exception has been taken to the manner of the summing-up against the accused person there have been other matters which collectively justified the appellate court in quashing the conviction.

The many reported cases of extremely strong views expressed by judges in summing-up which have left appeal courts quite unmoved by submissions of unfairness give some indication that appeal courts are most reluctant to interfere when a trial judge has made it clear to the jury that the facts are for them.”

In the present case the appellant, both in his statements out of court and in the witness-box denied the complainant’s allegations against him and on which allegations the charges against the appellant were based.  I have summarised the relevant portions of his evidence and he in effect counter attacked by alleging that the complainant was the aggressor in offering to and performing oral sex on him.  As I have said the case against the appellant was a strong one.  In this Court, counsel submitted the learned trial judge failed to outline defence arguments to counter balance what His Honour had said in the above quoted extracts from the summing-up.  It is true that the learned trial judge did not tell the jury that the defence case was the appellant’s denial that any of the incidents attributed to him had occurred as well as his claim that the complainant was the aggressor in the alleged oral sex incident.  However, there was no complaint by trial counsel concerning that omission and lack of such complaint is in my view significant and tells against the appellant.  Such omission did not in my view prevent the summing-up being fair and balanced.  His counsel was aware of the trial atmosphere and in my view there can be no surprise in his not having sought a further direction from the learned trial judge as to the appellant’s defence case viz a bare denial.

The jury must have been well aware of that defence having on the previous day heard the appellant’s evidence and then heard his counsel’s address.  The appellant had initially denied having been at Gordon’s house and claimed to have been home by about 1 am.  At trial his story changed and on 27 March 1996 he had made a damaging admission to Constable Gunson.  At trial he denied on oath the allegations made by the complainant against him.  Apart from the ground argued before this Court, there is no complaint about the manner of the summing-up.

In my view there is no substance in this appeal and I would dismiss it.

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 3 October 1997

I have had the advantage of reading the reasons for judgment of Davies JA and Shepherdson J and agree with them.  When a ground of appeal is an allegation of lack of balance in the trial Judge’s summing up to the jury it is often difficult to appreciate the strength of the argument without a transcript of counsels’ addresses.  Where, as is often the case, both counsel have referred the jury to passages from the evidence - often the same passages - it will not be necessary for the trial Judge to do so yet again.  It might be thought a useful practice, engaged in by a number of trial judges, to have counsels’ addresses transcribed for future reference.  This would be of benefit where grounds of appeal other than that presently under consideration are raised.

I agree for the reasons given by Davies JA and Shepherdson J that the appeal must be dismissed.