The Queen v L[1997] QCA 436

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 278 of 1997

Brisbane

[R. v. L]

THE QUEEN

v.

L Appellant

McPherson J.A.

Pincus J.A.

de Jersey J.

Judgment delivered 5 December 1997

Separate reasons for judgment of each member of the Court; Pincus J.A. dissenting.

APPEAL AGAINST CONVICTION DISMISSED

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 5 December 1997

The appellant was convicted after trial in the District Court at Cairns of two counts of indecent dealing with a child under 16 years of age with circumstances of aggravation committed during a period between 1 June 1994 and 19 March 1995; two counts of incest with that child between 1 January 1996 and 15 July 1996; and a count of carnal knowledge by anal intercourse committed with a circumstance of aggravation on a child under 16 between 9 July 1996 and 15 July 1996.

The child referred to in the charges is the appellant’s daughter.  She was born on 15 July 1982 and so was almost 12 years old at the time of the beginning of the period in the first count; and she turned 14 on the last date mentioned in the fifth count.  It is fair to regard her as a 12 year old while most of the offences were being committed.  She was 14, almost 15 years old, at the time of the trial.

Evidence of the commission of the offences was led at the trial from the complainant herself.  At that time she lived at home with her father, the appellant, her mother, and two younger brothers. Judging by the transcript she gave her evidence confidently and with some degree of persuasive detail.  On the first occasion, she said, the appellant had come into her room when she was in bed and started rubbing his hands all over her body, her breasts, and her fanny (count 1: indecent dealing).  On the second occasion (count 2: indecent dealing) he had again come into her room at night, rubbed his hands over her body and breasts, put two fingers inside her fanny, and moved them up and down, saying that he really loved her.  She told him that what he was doing hurt her.

Count 3 was the first of the charges of incest.  The appellant came into the bathroom when she was having a shower.  She did not hear him come, but he got into the shower with her, and he put his dick in her fanny.  He was standing in front of her when he did it.   She said, “Don’t; please stop.  It hurts”.  Then he left, saying “make sure you wash it off if I got any stuff on it”.  Count 4, also a count of incest, related to an occasion when the appellant had told her to lie awake in bed that night.  He later came into her room wearing a pair of green shorts, undressed himself, undressed her, lay on her bed, and cuddled up to her.  He put his penis in her vagina and pushed it in and out.  Then he had her masturbate him, holding her hand around his penis, after which he went to the toilet.

The fifth count (anal penetration) related to an occasion when she was in her bedroom.  Before she went to bed, the appellant had told her to stay awake.  When he came in he took her clothes off, and his clothes off, laid her down, and cuddled up to her.  She was lying on her stomach and he put his penis in her anus. She felt a lot of pain and asked him to stop, at which he said “Shut up, or you’ll wake your mother, and she’ll think you asked me to do it”.  She recalled that afterwards when he was leaving her room to go to the toilet, he hit his shin on a drawer in her dresser which she had left open.

The complainant was able to fix the occasions of particular incidents by reference to events, which her mother and other witnesses at the trial then proceeded to identify in time.  Count 1 related to an occasion some two months after her mother first told her that she was pregnant with her brother Jacob, who was born on 15 March 1995. Her mother told her of this in late July 1994.  Count 2 related to an occasion after her mother’s second stay in hospital, which her mother in evidence placed in late February 1994.  Count 3 (the incident in the shower) happened before Jacob was born but after her mother had gone to hospital.  Count 4 (the second count of incest) took place at the beginning of 1996 during the school summer holidays.  Count 5 referred to a date which was a couple of days before the complainant’s 14th birthday on 15 July 1996.  The appellant moved out of the home in August 1996.

The defence case was that none of these offences had been committed, and that what the complainant had said was all lies, which she had made up.  This was put to her in cross‑examination, but she denied it.  The appellant himself gave evidence in which he denied the charges against him, saying that he had never touched the complainant, and had always said that he would kill anyone who touched his kids.

In this state of evidence, the jury were left with the task of deciding whether the complainant was, beyond reasonable doubt, a reliable witness in the evidence she had given.  The conflict was one that fell to be determined in the usual way; that is, according to their impressions of the credibility of the two principal witnesses.  The only additional material to assist them in reaching a decision on that matter was the evidence of Dr Kay Haig.

Dr Haig was working as a visiting doctor at the Cairns Base Hospital when on 16 August 1996 she conducted an examination of the complainant.  She noticed what she described as a sexually mature hymen, which had two tears in it.  One measuring 2 mms. was at the 1 o’clock position and the other of 4 mms was at 7 o’clock.  Both were tears which had healed at least two weeks before the examination.  In the opinion of Dr Haig, the presence of those two healed tears was “certainly consistent with penetration of an object”, whether fingers or a penis she was unable to say. She had not found any injury to the anus, although that finding was quite possibly because an anus is capable of expanding to accommodate an object the size of a penis without causing injury.  Dr Haig, it may be noted, is a practitioner with considerable experience in this area of medicine.  She has been working in Family Planning in Queensland for the last 10 years, in the course of which she did a lot of examinations of women.  She had also been doing sexual assault examinations in the preceding few years, including examinations of children for the Juvenile Aid Bureau.

In cross-examination, Dr Haig agreed that there were innocent  explanations for tears in the hymen.  She said it was possible for the hymen to tear “from other reasons”, although she was not asked to identify them.  If there had been full vaginal penetration by a male penis, it was unlikely the hymen would have remained untorn and in place.  The tears were small, but it was quite obvious that they had taken place and had healed.  Whether or not the tear was caused by a very slight degree of penetration depended on the amount of elasticity in the particular hymen.  In re‑examination, Dr Haig explained that certainly, if there was more force and if full penetration had occurred on a number of occasions, large tears would be expected; but, she added, she had seen women, who had had a long-term sexual relationship, with a hymen very similar to that which she found in the case of the complainant in this case.

Mr Butler S.C. and Mr Griffin of counsel who appeared for the appellant on the appeal did not attempt to support the original grounds in the notice of appeal, but sought and were given leave to add the following additional grounds:

A.The learned trial judge misdirected the jury in that his Honour -

1. instructed the jury that the evidence of Dr Haig was capable of corroborating the complainant;
2. through that direction invested the medical evidence with a weight and significance it did not possess; and
3. failed to instruct the jury as to the very restricted effect which could be attributed to the medical evidence in the circumstances of this case.

B.The trial miscarried because the jury did not have before it relevant credible and cogent evidence which, when viewed together with evidence given at trial, would have been likely to have resulted in an acquittal.

In support of ground B, it was sought on appeal to read affidavits of the appellant and his present solicitor.  We received those affidavits for the purpose of considering and ruling on their admissibility.  The first complaint was that at no stage before or at the trial had the appellant been advised by his then solicitor that an independent expert witness had been arranged to examine the complainant, nor had the appellant ever requested them to arrange such a witness.  The present solicitor’s affidavit deposes to his firm’s first having taken instructions from the appellant in late June 1997, which was after the trial earlier in the same month.  He set about finding medical evidence relevant to the matter of the state of the complainant’s hymen, and, after some inquiries, obtained from Dr Keeping a report dated 27 August 1997, which is exhibited to the affidavit.

Dr Keeping, who is a specialist in obstetrics and gynaecology, wrote his report after reading the transcript of the evidence at the trial of the appellant.  He makes four particular comments.  The first is that, as regards the act of incest in the shower, sexual intercourse would have been difficult if the parties were standing because of the height difference between the appellant and the complainant; because she was a virgin; and because the appellant was present in the shower for only two to three minutes. Dr Keeping’s opinion is that, although these circumstances would not have made sexual intercourse impossible, it would have made it “very, very improbable”.  The second comment is that he would have expected there to be some bleeding, given the speed of the act and the pain involved.  His third comment is that the tears of 2 mm and 4 mm observed in the complainant’s hymen were very small and, in the case of the former, that it “would almost need a magnifying glass to detect it”. His final comment was that those tears would be compatible with: (a) penetration; (b) sexual intercourse without penetration; (c) no sexual activity at all.  It would, he said, be “impossible to state with 100 per cent certainty which possibility the hymenal findings  lined up with”.  However:

“on the balance of probability it would be extremely unlikely that the findings correlated with brief painful penetrating sex standing up in a shower.  Thus all one could say is that the findings on vaginal examination are, on the balance of probabilities, much more likely to fit with there having been sexual activity without penetration or no sexual activity at all.”

While accepting the expertise and experience of Dr Keeping on the subject, his comments are not necessarily relevant to the central question that arose at the trial.  The law does not require or expect 100% certainty in relation to matters requiring proof at trial.  Apart from that, however, Dr Keeping appears to have assumed that the question was whether there had been full penetration of the complainant’s vagina on the occasion in the shower.  Thus, he acknowledges “for example” that it “would have been possible for very gentle sexual intercourse with penetration to have taken place leaving almost no scarring of the hymen”.  It is, of course, not essential to the element of penetration in the crime of rape that there be anything more than this, or indeed that even as much as “gentle sexual intercourse” should have taken place in order to constitute the offence.  In relation to this element of the offence, s. 347 of the Criminal Code uses the expression “carnal knowledge”, which is defined in s. 6 to mean that the offence, so far as regards that element of it, is complete on penetration “to any extent’.  This accords with the law as it has been applied for a very long time.  On a reference to the Court for Crown Cases Reserved in R. v. Lines (1844) 1 Car. & K. 393; 174 E.R. 861, 862, Parke B., after hearing submissions on the question, said he proposed to leave it to the jury to say “whether, at any time, any part of the virile member of the prisoner was within the labia of the pudendum” of the complainant.  That accords with the way (although not the language) in which the matter is ordinarily summed up in trials in Queensland, and, it would seem, also in South Australia: see Randall (1991) 53 A. Crim. R. 380, 382.  The legal position may now be different in those States where the offence has been exhaustively redefined as “penetration of the vagina” : see Holland v. The Queen (1993) 67 A.L.J.R. 946, 949 col.2; but that improvement in the law (if that is what it is) has not been adopted in Queensland.

It follows that no more was needed to establish each of the offences in counts 3 and 4 in the present case than that some part of the appellant’s penis passed beyond the labia of the complainant. As it is, her evidence, if accepted, shows a degree of penetration more extensive than that.  This being so, there is no reason to doubt that the jury were entitled to find that “penetration” sufficient for the purpose of s. 6 took place on the occasion described in the shower.  Dr Keeping himself observes that he does not know the relative heights of the appellant and the complainant; but the jury saw both of them in court and it may confidently be assumed they were aware of their relative sizes or heights.

For these reasons, Dr Keeping’s comments lack the degree of relevance and cogency required to make them admissible as fresh evidence on appeal.  Quite apart from that consideration, it has not been shown that material to the effect of that in his report, would not by due diligence have been available at the trial if efforts had been made to find a medical expert willing to give it.  The case is therefore not one in which the requisites for the admission of fresh evidence on appeal are satisfied.  It follows that the two affidavits should not now be admitted in evidence in this Court.

The second additional ground of appeal (ground A) may now be considered.  As set out above, it is that the learned trial judge misdirected the jury that the evidence of Dr Haig was capable of corroborating the complainant, and so invested it with a weight and significance it did not possess, instead of instructing the jury of the very restricted effect which could be attributed to it in the circumstances of the case.

The directions given to the jury on the matter commenced with a warning that, being a case involving an allegation of sexual misconduct, it was necessary to approach the evidence of the complainant with great care; that human experience is that, in such matters, for all sorts of reasons and sometimes for no reason at all, complainants tell a false story, which is very easy to fabricate and difficult to refute; that the complainant in this case was a child, and children had fertile and sometimes fanciful imaginations, who had sometimes been known to invent accounts of events, particularly where sexual things were concerned, which had no relationship to the truth.   Therefore, his Honour said, it would be dangerous to convict on the uncorroborated testimony of the complainant alone.

The warning so given, or at least the first part of it, was based on statements in Kelleher v. The Queen (1974) 131 C.L.R. 534, 541-543.  As such, it may, possibly have been unduly favourable to the appellant having regarding to what has since been said in Longman v. The Queen (1989) 168 C.L.R. 79, 93-94.  But in directing the jury at this trial his Honour went on:

“Nevertheless, if bearing that warning I have given to you in mind and after careful consideration of all the evidence, and in particular the evidence of the complainant, and giving full weight to the warning you come to the conclusion that you are satisfied beyond reasonable doubt that the complainant is telling you the truth, the fact that there is no corroboration does not matter and you are entitled to convict.  You will, therefore, want to look most carefully for corroborative evidence from a source other than from the complainant herself.

Corroborative evidence sounds like a technical matter. It is not, ladies and gentlemen.  It is evidence from a source independent of the complainant which shows or tends to show the offence charged was committed on the complainant.  That is [an] independent source, direct or circumstantial, which confirms in some material particular the account of the complainant; or shows or tends to show that the account of the complainant is true.

Ladies and gentlemen, in respect of such evidence - it is a good example of the dual functions which you and I have - my function is to tell you what evidence is capable of being corroborating in the circumstances of the case, and it is for you to decide whether indeed, in the circumstances of the case, the evidence does in fact support the complainant in the way to which I have referred.  I should tell you that there is evidence in this case capable of corroborating the complainant and that is the evidence of Dr Haig of what she found on examination of the complainant on the 16th of August of 1996.  I will return to that later because, as you have heard already from the submissions of counsel, there is a case each side advanced in respect of that evidence.”

Having said that, the judge proceeded to refer to other aspects of the evidence at the trial before returning to the evidence of Dr Haig:

“Dr Haig gave evidence of the examination on the 16th of August of 1996.  She found two tears in the hymen, one at the 1 o’clock position of two millimetres in size, one at the 7 o’clock position, four millimetres in size.  She described those as healed tears that would have occurred at leat two weeks before her examination but could have gone back a long time, possibly years I think she said.  The examination of the vagina was otherwise normal.  There was an irrelevant infection of a not unusual kind.  She said that there were a number of explanations of the tears in the hymen.  It was consistent with penetration by either a penis or fingers but it was also consistent with a number of innocent explanation and she described the fact that even with full penetration sometimes with mature persons, she found the hymen in that particular state.”

After mentioning Dr Haig’s evidence concerning examination of the complainant’s anus, his Honour proceeded:

“The Crown advanced to you that the evidence of Dr Haig is such that what she found was consistent with penetration by a penis or fingers and that is supportive of the complainant’s account of what occurred to her.  The defence case in respect of that evidence is that in view of the fact that the tears are very small in size and that there are a number of innocent explanations for them, that you would not accept that there was such support available in the evidence of Dr Haig.”

The appellant relied heavily on R. v. Kerim [1988] 1 Qd.R. 426 as authority that the damaged condition of a woman’s or a girl’s hymen is incapable of amounting to corroboration of her evidence that someone had had sexual intercourse with her.  It is, of course, self-evident that there can be no rule of law to that effect.  The evidentiary significance, if any, of a rupture or tear in the hymen of a complainant must necessarily vary with the facts and circumstances of each case, including, for example, the age of the complainant; the extent of the rupture or tear; the lapse of time, so far as it can be determined, since it occurred; evidence of other activities to which the  injury might be attributable; and so on.  In the case of a very young girl, evidence of a recent tear in her hymen might in some circumstances prove well nigh decisive, whereas in the case of a middle aged or older married woman, it would seldom, if ever, be worthy of consideration.

The decision in Kerim cannot, therefore, be viewed as more than a decision that in the particular circumstances disclosed by the evidence adduced at that trial, the fact that the complainant’s hymen was proved to be damaged was, in the view of the majority of the Court of Criminal Appeal, not capable of constituting corroboration.  A detailed examination of the facts of the case is therefore not likely to be instructive; but it is perhaps worth observing that, if accepted, the evidence there suggested that the complainant’s hymen had in fact been torn when she was about eight years old, which was as much as four years before the particular incidents in 1986 for which it was offered as corroboration. Here the two acts of incest that were suggested to have caused the damage noticed in the examination in August 1996 were alleged to have taken place in about January 1996, although, as Dr Haig agreed, it was also “possible” that the two tears might have been caused by events years before.

The appellant submitted that, in the light of the testimony of Dr Haig, the competing inferences to be derived from the condition of the complainant’s hymen were at best so equivocal as to be “intractably neutral”, and hence incapable in law of providing support for a conclusion of guilt.  Properly understood, however, it is not the function of corroboration to prove the guilt of someone accused of a sexual offence.  Its function is narrower than that.  It is, to use the time‑honoured phrase, to afford independent confirmation or support “in a material particular” for oral testimony from the complainant at trial which, if accepted, would establish one or more of the elements of the offence charged.  As such, it serves as some assurance of the reliability of the testimony of that witness, and so “reduces the danger that the complainant’s allegation is fabricated” : R. v. M. [1995] 1 Qd.R. 213, 221.

In the present case, the evidence of Dr Haig of the presence of healed tears in the hymen was evidence which was independent of the oral testimony of the complainant at the trial.  Her testimony was that her father had on four occasions inserted his fingers or his penis into her vagina sufficiently or to such an extent that it hurt her.  The fact that some time afterwards there were discernible tears in the hymen was, in the opinion of Dr Haig, “consistent with penetration of an object”, whether it was fingers or a penis.  As such, it tended to support or confirm the testimony of the complainant that that was what had happened.   It is, of course, true that the presence of those tears might have been due to some other, but unidentified, possible cause; but, since the function of corroboration is not to prove a fact, but simply to support or confirm other evidence of that fact, the evidence from Dr Haig was plainly capable of satisfying that description.  It then became a matter for the jury to determine whether or not they considered it had that effect.  A court, said Isaacs J. in Cofield v. Waterloo Case Co. Ltd. (1924) 34 C.L.R. 363, 375:

“... has always the function of saying whether a given result is ‘consistent’ with two or more causes.  But whether it is ‘equally consistent’ is dependent on complex considerations of human life and experience, and in all but the clearest cases - that is, where the Court can see that no jury applying their knowledge and experience as citizens reasonably could think otherwise - the question must be one for the determination of the jury.”

Here Dr Haig had said that the hymenal tears were consistent with penetration of an object.   Her evidence was uncontradicted, and the judge was entitled to act on it by leaving it for the jury to consider.  Dr Haig did not say that the tears were “equally consistent” with anything else, but only that it was possible for a hymen to tear “from other reasons”.  In those circumstances, it was for the jury (who evidently included some women jurors) using their experience to decide whether the presence of those tears tended to support the complainant’s testimony that she had been penetrated by fingers or a penis on the occasions about which she testified.

The evidence of Dr Haig was capable of confirming the sworn account of the complainant at the trial that someone had stuck fingers or a penis into her vagina on at least one occasion.  It remained for the Crown to establish beyond reasonable doubt that it was the appellant who had done so.  As to this, Mr Butler S.C. submitted on the appeal that what Dr Haig had said lacked an essential ingredient of evidence capable of being considered corroborative.  It did not “implicate” the accused as the person who had done that act or acts, meaning by that it did not connect him with the offence by tending in some material particular to show not only that an offence had been committed but that the accused had committed it: R. v. Kerim [1988] 1 Qd.R. 426, 445.

Once again, however, it is not the function of the evidence relied on as corroborative to prove the identity of the offender.  If that were in law the requirement, it would seldom be capable of being satisfied by any evidence.  Before the advent of D.N.A. evidence it would have been virtually impossible for any particular fact or circumstance to identify a particular individual as the one who had had sexual intercourse with a woman or girl.  What is required is not evidence that independently established the identity of the offender, but evidence that in some material particular tends to support the complainant’s allegation that the accused was the person who committed the acts upon her.  Here the complainant said it was her father.  He undoubtedly had the opportunity to do it; but mere opportunity, without more, is not ordinarily sufficient unless there is also other evidence showing, for example, that the accused was the only person who had the opportunity at the relevant times or places.

The appellant scarcely filled that category.  He had the opportunity to have sexual intercourse with the complainant, and it is noteworthy that, among the occasions on which the acts were said to have taken place, some were after her mother had been in hospital.  In evidence her mother said that, during her pregnancy, there were two short stays in hospital on dates or at times which she identified.  She said she was sick during pregnancy and would go to bed early at 8.00 or 8.30 pm, whereas her husband always went to bed late, at maybe 1 or 2 am. That might well be thought to fit in with the complainant’s story; but it would not have been sufficient to amount to corroboration.

The learned trial judge did not, however, direct the jury that either opportunity, or the tears in the hymen, tended to support the complainant’s evidence that it was her father rather than anyone or anything else that had caused those tears.  What he told the jury (in the passage previously set out in these reasons) was that, to constitute corroboration, there had to be:

“evidence from a source independent of the complainant which shows or tends to show the offence charged was committed on the complainant.  That is [an] independent source, direct or circumstantial, which confirms in some material particular the account of the complainant; or shows or tends to show that the account of the complainant is true.”

It will be seen that the judge said nothing about the evidence of Dr Haig (which his Honour specified in the passage from the summing up previously set out) tending to establish the identity of the appellant as the person who had done those acts of digital and penal penetration.  The jury would not have supposed that he was directing them to that effect.  For them to have interpreted his direction in that way they would have had to have read the decision in R. v. Baskerville [1916] 2 K.B. 658, or perhaps R. v. Kerim [1988] 1 Qd.R. 426, and noticed and recalled the references there to “inculpating” the accused or “tending to connect him with the crime”.  Since it can fairly be predicated that the jury had not read and knew nothing of either of those decisions, there is no reason to assume that, in telling them what he did, the trial judge was also saying that the evidence of Dr Haig about the tears in the complainant’s hymen tended not only to confirm her evidence that she had been penetrated but that it was her father who had done it.  Simply telling a jury that there is evidence capable of amounting to corroboration does not imply that is evidence that connects the accused with the offence charged.

The judge said nothing to that effect.  He simply reminded the jury of what Dr Haig had said both in her evidence and under cross-examination.  No reasonable jury would have interpreted Dr Haig’s evidence as tending to support the testimony of the complainant in the particular that the accused was the person who had carried out acts of penetration on her.  For that, it was plain they had only her word to go upon, considered in the context of the surrounding circumstances of place, time and opportunity.  No one suggested that the physical condition of the complainant’s hymen when Dr Haig examined it on 16 August 1966 suggested or confirmed anything more than that, as Dr Haig said, it was certainly consistent with penetration of an object, although it was possible for a hymen to tear “from other reasons”.  The jury, as must have been obvious to them, were left with the task of reaching their verdict essentially on the impression they formed of the complainant as a reliable witness of the truth bearing in mind the explicit warning which the judge had given to them.  In finding the appellant guilty they evidently accepted her evidence.  There is no reason to suppose that, in the light of the evidence on the subject, they ascribed to the condition of the complainant’s hymen as described at the trial, any greater significance than it merited.  The judge’s direction to them did not attribute to the evidence from Dr Haig greater weight than it in fact possessed.

The appeal against conviction should be dismissed.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 5 December 1997

I have had the advantage of reading the reasons of McPherson JA.  As his Honour explains, one of the grounds of appeal was that the appellant should have had, but did not have, evidence of an expert kind called below, to counter that of Dr Haig.  An affidavit made by the appellant makes complaint of the conduct of his solicitors in this respect.  There is no suggestion that evidence such as that proposed to be adduced on appeal, in answer to Dr Haig’s evidence, was unavailable at the trial;  what the appellant says in his affidavit is that the solicitors did not tell him that such a witness "could or should be arranged to examine the complainant child". 

This Court has a discretion to let in further evidence in criminal appeals and it may exercise that discretion in favour of an appellant even where (as here) the evidence could with due diligence have been adduced below.  But it is not the practice of the Court to order a new trial whenever it is suggested that the appellant’s solicitor or counsel have failed to adduce evidence at the trial which might have enhanced the chances of acquittal.

Where the Crown case depends in part upon expert evidence it will often be possible for the defence to find an expert who holds a view which is more favourable to the defence than the opinion of a Crown expert.  But it will only be in unusual circumstances that a decision by the defence lawyers not to adduce countering expert evidence at the trial will be held, on appeal, to vitiate a conviction or held to justify the admission of further evidence.  The accused is ordinarily bound by the way in which those who represent him have chosen to conduct the trial.  Another circumstance which disinclines me to accept the submission that the appellant should now be allowed to bring before the Court expert evidence with respect to the significance of the condition of the complainant’s hymen is that it appears that the subject has been intensively studied, but the proposed witness does not assert that he is familiar with the literature.  Bond and others, in Pediatrics, Vol. 95, No. 5, May 1995, 628, report a rather elaborate study which "confirms previous reports that the hymen may be involved in unintentional perineal injuries in prepubescent girls but suggests that such involvement is a rare event" and that "[h]ymenal findings are rarely the result of unintentional injury".  Another substantial study is that of Adams and Knudson, in Archives of Pediatrics Adolescent Medicine Vol. 150, August 1996, 850;  they produce data showing that "most girls who describe sexual abuse involving penile-vaginal penetration still have a normal-appearing hymen", the explanation being that "the hymen in adolescent girls is an extremely elastic tissue" (856).

For these reasons, I would not admit the further medical evidence which has been put forward.  The other ground of appeal is that the judge should not have left the condition of the complainant’s hymen, as testified to by Dr Haig, as potentially corroborative.  What has to appear in order to make evidence corroborative was recently discussed in this Court in Major and Lawrence (C.A. No. 438 and 439 of 1996, 2 May 1997).  There, Fitzgerald P expressed the view that, to be corroborative, evidence must logically add to the probability that the event in question occurred, but his Honour denied that evidence could have that character if merely consistent with guilt (2).  McPherson JA said that:

"The fact that an item of circumstantial evidence may give rise to competing inferences is not ordinarily sufficient to justify its exclusion from consideration." (3)

Earlier, in Cook and Ors. (C.A. No. 219, 231, 242, 243 and 250 of 1996, 19 November 1996) Thomas J had referred to the "disharmony in the decided cases on the question of evidence capable of amounting to corroboration . . . " and said that cases his Honour cited "show different views of whether particular items of evidence can be regarded as corroborative when, standing alone, they are equivocal or neutral" (3).

There are, in the present case, two difficulties in the argument for the Crown.  First, there is the point just alluded to, whether the evidence of the apparent injuries to the complainant’s hymen, sworn to by Dr Haig, was consistent with both guilt and innocence and, if it was, whether it could nevertheless be used as corroboration.  Secondly, there is the question whether, if the hymen injuries could properly be regarded by the jury as more consistent with guilt of some person than with innocence, those injuries were capable of corroborating a charge brought against the appellant.

As to the first question, it is my opinion that on the evidence the jury could properly regard the evidence of the injuries to the hymen as more consistent with the proposition that somebody had interfered with the complainant sexually than with the proposition that no-one had.  Dr Haig’s evidence was in my opinion capable of supporting that;  while, it is true, the doctor was prepared to concede that it was possible that the hymen could have been torn by, for example, bouncing on a trampoline, her evidence as a whole was susceptible to the interpretation that she thought the more obvious explanation was penetration of the vagina by some object.  The medical evidence was not "intractably neutral":  see Kalajzich and Orrock (1989) 39 A.Crim.R. 415 at 433.

A more difficult point, in my opinion, is whether it is necessary that what is said to be potentially corroborative implicates the accused.  In Major and Lawrence,  Fitzgerald P expressed the view that if corroboration is essential "there must be evidence from a source other than [the witness whose evidence requires corroboration] which adds to the probability both that the offence was committed and that it was committed by the accused" (2).  In that case the evidence said to be corroborative was the distressed condition of the complainant.  She said she had been raped by Lawrence, Luke and Major;  both Lawrence and Major admitted having had intercourse with the complainant, but denied lack of consent.  In discussing whether the evidence was corroborative, McPherson JA remarked:

"[h]aving some evidence that supports a complainant’s account that force was used on her by someone is an improvement, even if only a slight one, on having no such evidence at all".

Following Berrill [1982] Qd.R. 508, the Court held that the appellant’s condition could properly be left to the jury as potentially corroborative in relation to each of Major and Lawrence (Luke was acquitted).

It is correct, in my respectful opinion, that to be corroborative evidence must show not merely that the offence charged was committed, but that it was committed by the accused.  Berrill, and now Major and Lawrence, are cases on, so to speak, the boundary of that doctrine.  But in the latter case the Crown had evidence that Major and Lawrence had intercourse with the complainant;  there was no issue about that and the question was as to whether or not that occurred with her consent;  the complainant’s distressed condition was capable of supporting the Crown case that there was no consent.  Here, for the reasons I have given, the condition of the complainant’s hymen supported the Crown case that the offence charged had been committed, but did it point to the appellant as the offender?  I cannot think that it did.  The case is not one where it is common ground that there was some sexual encounter between the appellant and the complainant, making the identity of the offender (if offence there was) a non‑issue.

To revert to Major and Lawrence, in that case McPherson JA expressed the view that evidence could be corroborative, though it failed to "confirm not only that the crime has been committed but also that the accused committed it".  As appears from what I have said above, that was not the view of Fitzgerald P, who relied on Doney (1990) 171 C.L.R. 207 at 211:

"[t]he essence of corroborative evidence is that it ‘confirms’, ‘supports’ or ‘strengthens’ other evidence in the sense that it ‘renders [that] other evidence more probable’ . . . It must do that by connecting or tending to connect the accused with the crime charged in the sense that, where corroboration of the evidence of an accomplice is involved, it ‘shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused’ . . . ".

I note that in Edwards (1993) 178 C.L.R. 193 at 200, Brennan J (as his Honour then was) relied on another passage from Doney, to similar effect.  Some remarks which are (to me at least) rather puzzling have recently been made in BRS (High Court, unreported, 25 September 1997).  One of the questions in that case was whether evidence of the person identified as W was corroborative of the complainant’s evidence that he had been the victim of sexual offences.  Brennan CJ said (5):

". . . evidence that is corroborative must confirm the evidence to be corroborated in a particular material to the commission of the offence charged.  W’s evidence was evidence of facts similar to some of the facts deposed to by [the complainant], albeit not facts constituting an offence similar to the offences charged.  However the corroborative evidence need not be direct proof of the actus reus although, when corroboration of an accomplice’s evidence is sought, it can be found only in evidence that confirms or tends to confirm the accused’s involvement in the events as related by the accomplice."

Footnote no. 8, which is inserted after the words "related by the accomplice", is a reference to Doney at 211, where one finds the passage I have quoted above and in addition the following:

"In the case of an accomplice’s evidence, it is sufficient if [the corroborative evidence] strengthens that evidence by confirming or tending to confirm the accused’s involvement in the events as related by the accomplice . . . ".

In both the passages I have quoted from Doney there is reference to Baskerville [1916] 2 K.B. 658, which was a case about corroboration of an accomplice.  However, the Baskerville Court plainly regarded itself as laying down a rule about corroboration which was perfectly general:

"We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime.  In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it.  The test applicable to determine the nature and extent of the corroboration is thus the same whether the case falls within the rule of practice at common law or within that class of offences for which corroboration is required by statute." (667)

To return to BRS, Gaudon J said at 14:

"[c]orroborative evidence is evidence that "‘confirms’, ‘supports’ or ‘strengthens’ other evidence in the sense that it ‘renders [that] other evidence more probable’".  In some cases, notably in the case of accomplice evidence, the question is whether it ‘tends to show that . . . the accused committed the crime [in question], not merely that the crime has been committed’.  In the circumstances of this case, the question is whether W’s evidence tended to confirm that the offences were committed, not that they were committed by the appellant".

Footnotes supporting this are references to Doney, at the page from which I have quoted, and to Baskerville, at the page from which I have quoted.  The third judge who included in his reasons a passage relevant to the problem I am considering was Kirby J, who quoted part of the first passage from Doney set out above:

"The essence of corroborative evidence is that it ‘confirms’, ‘supports’ or ‘strengthens’ other evidence in the sense that it ‘renders [that] other evidence more probable’ . . . It must do that by connecting or tending to connect the accused with the crime charged in the sense that . . . it ‘shows or tends to show that the story . . . that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused’ . . . ". (30)

It will be noted that his Honour omitted the words "where corroboration of the evidence of an accomplice is involved" in the original Doney passage. 

The remarks of Brennan CJ and Gaudron J may perhaps be taken to suggest that the requirements of corroboration differ, depending upon whether the person requiring to be corroborated is or is not an accomplice.  This suggestion is, I suspect, based on the language of Doney in the first passage I have quoted, which is capable of being read as confining the requirement that the corroborative evidence must show that the crime has been committed by the accused to accomplice cases;  but that seems to be merely a slip in Doney, for the authority there relied on, Baskerville, does not support the view that corroboration has a special meaning as to accomplice evidence.  I have noted that in Chance [1988] Q.B. 932, the English Court of Appeal held, in effect, that where a sexual offence is charged and the identity of the offender is in issue, then a special direction of being a "formal corroboration direction" will ordinarily suffice.  That decision, however,  played no part in the formulation of the corroboration test in Doney, nor was Chance referred to in BRS.  It does not appear to me that this Court should treat Chance as authoritative in Queensland, because it introduces another complication (and not a very logical one) into the rules about corroboration and because this Court does not commonly emulate innovations appearing in decisions of the English Court of Appeal.

In my opinion, the law is that evidence which does not support the proposition that it was the accused who committed the offence in question cannot, in general, be corroborative.  The explanation for decisions which might at first sight seem to be inconsistent with that view, (such as Major and Lawrence) is that an admission, or some other independent evidence, was available in those cases to support the conclusion that if an offence was committed, it was the accused who committed it.  I should add that the view I take accords with that stated in McK [1986] 1 Qd.R. 476 at 477 line 15.

The remaining question is whether there was a substantial miscarriage of justice.  The judge, in a number of ways, urged the jury to approach the complainant’s evidence with caution and elaborated on that topic.  His Honour concluded this part of the discussion by saying:

"[t]herefore it would be dangerous to convict on the uncorroborated testimony of the complainant alone". 

His Honour told the jury that evidence capable of corroborating the complainant was that of Dr Haig.  That evidence perhaps literally fulfilled the description of corroboration which the judge gave the jury, namely evidence "which shows or tends to show the offence charged was committed on the complainant" or "confirms in some material particular the account of the complainant";  but as I have pointed out, the evidence had, to be corroborative, to point to the appellant as the offender.

At a later point in his summing-up the judge returned to the subject of Dr Haig’s evidence and summarised, in what appears to me to be a neutral way, the effect as well as the significance of that evidence;  I note that his Honour did not at any time express a view as to whether Dr Haig’s evidence was in truth supportive of the Crown case, going no further than the direction that it was "capable of corroborating the complainant".  The question is whether the statement just quoted could have deprived the appellant of a chance of acquittal or, to put the test another way:  in the absence of the judge’s direction that Dr Haig’s evidence was capable of corroborating the complainant, was a conviction inevitable?  The evidence in question was indeed capable of being corroborative, if it were the law that to attain that status the evidence had to do no more than (to adapt the judge’s words) show or tend to show that the account of the complainant was true.  But it appears to me that the judge should, in accordance with the authorities I have mentioned, and in particular Doney, have told the jury that Dr Haig’s evidence was capable of advancing the Crown case only in so far as it supported the complainant’s evidence that there was sexual interference by way of penetration of her vagina - but that the evidence of Dr Haig did not point to the appellant (rather than anyone else) as the offender and therefore could not be corroborative of the Crown case against the appellant.  The judge was not asked to give any such direction;  perhaps counsel for the appellant below thought that it could not really help his client.  Nevertheless, and I confess with some regret, I have come to the conclusion that the misdirection on the question of corroboration could have, at least to some extent, encouraged the jury to convict rather than acquit.

I note that the relevant law has, since this trial, been altered by s. 21, s. 23(6) and s. 26(4) of the Criminal Law Amendment Act 1997, thus ridding the law of the technicalities which have beset it, in cases such as the present.

I would allow the appeal, quash the convictions and direct a new trial.

REASONS FOR JUDGMENT - de JERSEY J.

Judgment delivered 5 December 1997

I agree with the orders proposed by McPherson J.A., and with his reasons.