SUPREME COURT OF QUEENSLAND

1. PINCUS JA:  I have had the advantage of reading the reasons of Ambrose J in which his Honour deals principally with the questions of corroboration, the judge's directions, the failure to discharge the jury on the ground of the complainant's conduct in court, the evidence of uncharged misconduct, and whether a new trial should be ordered.  I propose to make mention of all these matters except the failure to discharge the jury.

2. As to count 1, the evidence put forward as being corroborative included that the complainant's sister T heard the complainant speak of her pyjamas being wet, that somewhat later she heard the complainant screaming and leaving the flat in which the offence was alleged to have been committed, followed by the appellant; she claims to have seen the complainant running up the street. The evidence also was that the complainant was dragged back screaming. This has some similarity to the complainant's account, in that on the complainant's story the appellant ejaculated upon her and on her pyjamas (which if true would have made the pyjamas wet), that the complainant ran from the flat in which the offence supposedly took place, that she was followed by the appellant who grabbed her by the arm and that she and the appellant then went back to the unit. There were however significant differences between the two versions, the most important of which are, in my view, that the complainant did not say she ran away screaming, nor that she was dragged back to the residence.

3. On the Crown case, the events in question took place more than 20 years before the date of this trial when the complainant was 11 or 12 years old and the sister about two years younger than her.  It would hardly be surprising, in these circumstances, to find considerable discrepancies between the recollections of the two witnesses.

4. It is convenient to begin analysis of the position by enquiring: was T’s evidence admissible? Evidence may be relevant to consideration of the guilt of the accused, without being corroborative. In Bryce [1994] 1 Qd R 77, evidence said to implicate the accused was equally capable of implicating certain other persons.  It was held that the evidence was not corroborative;  but there was no suggestion that it was inadmissible.  Analogous evidence is that of opportunity;  mere proof that the accused had the opportunity to commit the offence charged is not, in general, corroborative;  but such evidence is likely to be admissible and perhaps important.  For example, if the Crown case is that a murder was committed in a particular town on a certain date, evidence that the accused was in that town on that date would be admissible;  but the mere presence of the accused in that place and at that date would not ordinarily, by itself, be capable of being corroborative.

5. Although I accept that the allegedly corroborative evidence in this case was not weighty, it was admissible. That was so because it tended to establish that, as the complainant said, there was an occasion when the complainant had wet pyjamas and subsequently left the flat in which she had stayed the night, followed by the appellant with whom she returned to the flat. It also supported the idea that on this occasion something had occurred to agitate the complainant and cause her to leave her bed and run away up the street.

6. However, because of the discrepancies which are analysed in the reasons of Ambrose J, in my opinion the judge should not have left the sister's evidence to the jury as being capable of being corroborative.  It was relevant, but not of sufficient strength to attain the status of corroboration.

7. I agree with Ambrose J, for the reasons his Honour has given, that the learned primary judge should have, when directing the jury's attention to T’s evidence, pointed out the discrepancies between her evidence and that of the complainant.

8. With respect to the uncharged sexual offences, I agree with the reasons of Thomas JA.  The High Court's decision in Gipp (1998) 194 CLR 106, has on a number of occasions been referred to or discussed in this Court;  the true effect of that decision is a little unclear.  I adhere to what was said about it in Knuth (CA No 64 of 1998, 23 June 1998), as quoted by Thomas JA in Schneider [1998] QCA 303;  CA No 128 of 1998, 2 October 1998 par 31.

9. What was quoted from Vonarx [1999] 3 VR 618 at p 156 and p 157 of Gipp, must be read subject to a qualification.  It is that "... evidence of criminal conduct, other than that which is charged ..." may be introduced into evidence for a purpose other than that mentioned in Vonarx, if it satisfies the test of admissibility of propensity evidence explained in Pfennig (1995) 182 CLR 461.  I refer also to the reasons of Thomas JA in O'Keefe [1999] QCA 50;  CA No 332 of 1998, 5 March 1999 par 21;  "evidence of criminal conduct, other than that which is charged" may, if the Pfennig test is satisfied, be admissible in proof of the offence charged.

10. I agree that the appeal should be allowed, the convictions set aside and that there should be no new trial. It would be unusual to order a fifth trial, even taking into account that one of the previous trials failed to achieve a result because the appellant withdrew instructions from his counsel. I also take into account that the two offences of which the appellant has been convicted are both old and that, as to one of them, the time period charged in the most recent trial is significantly at variance with that charged in the previous trials.

11. THOMAS JA:  I have the advantage of having read the reasons of Ambrose J which, with respect, comprehensively set out the issues and the material evidence.

12. I agree with his Honour's reasons for concluding that the conviction on count 1 was unsafe. In particular, the direction to the jury that the evidence of the complainant's sister T was capable of corroborating the complainant on this count was an error, and in the context of this trial can be seen to have been a significant error. T's evidence of the night (or morning) in question suggests that there was an incident in the complainant's life when she ran from the house with wet pyjamas and was later forcibly brought back by the appellant. On one view the wetness of the pyjamas is consistent with the complainant's account of the appellant having ejaculated on her pyjamas, but it is equally consistent with other evidence that the complainant suffered a bed-wetting problem which distressed her considerably. Although I have fluctuated in reaching a conclusion on this question, I consider that in the phrase used by Macrossan CJ in R v Kerim^[1] T's evidence was at best "intractably neutral" and incapable of serving as corroboration.^[2]  I do not think that this evidence can be used to suggest that the event was preceded by any sexual incident or by any activity in which the appellant was involved.  In the circumstances of this particular case the incident described by T could not properly be used as giving any positive support to the Crown case or even to the credit of the complainant.

13. I agree entirely with Ambrose J's comments in relation to the unfairness of the unresponsive, emotional and highly prejudicial evidence and conduct of the complainant, and consider that this ground alone would be enough to justify the setting aside of the two convictions.

14. I also agree that in the circumstances of these very belated complaints it is difficult to find an adequate basis for the jury's acquittal on four of the complainant's allegations and conviction on two. It is not necessary however to rely upon this as a separate ground, as I agree with Ambrose J's reasons demonstrating that the convictions are unsafe and unsatisfactory on the evidence that was presented.

15. Standing alone, I would not regard the leading of evidence of uncharged sexual offences as rendering the convictions unsafe. The complainant did not go into details in relation to such matters, and it was part of her story in relation to some of the counts that similar things happened frequently, not just on the isolated instances which were charged and closely examined. Where, as would seem to be the case here, an incident is in the mind of the complainant an instance of an allegedly recollected pattern, it is very difficult and sometimes impossible for a court in effect to censor the evidence by excluding all reference to uncharged acts. There is an acceptable basis on which such evidence may be received, and the directions of the learned trial judge properly dealt with the evidence on that basis.^[3]

16. Subject to the above comments, I agree entirely with the reasons which have been prepared by Ambrose J, and I concur in the orders that he proposes.

17. AMBROSE J:  On 4 April 2000 the appellant was arraigned upon six counts alleging sexual offences committed upon the complainant between 1 November 1977 and 31 December 1981.  Those counts and the verdicts given upon them may be briefly recorded as follows -

1. Between 1 November 1977 and 31 May 1978 (a period of seven months) unlawful and indecent dealing with complainant then under the age of 16 years.

Verdict:   Guilty

2. Between 1 January 1978 and 31 December 1978 (a period of twelve months) unlawful and indecent dealing with complainant then under the age of 16 years.

Verdict:   Not Guilty

3. Between 1 November 1978 and 1 January 1979 (a period of two months) rape of complainant.

Verdict:   Not Guilty

4. Between 1 January 1980 and 31 December 1981 (a period of two years) rape of complainant.

Verdict:   Not Guilty

5. Between 1 January 1980 and 31 December 1981 (a period of two years) rape of complainant.

Verdict:   Guilty

6. Between 1 January 1980 and 31 December 1981 (a period of two years) rape of complainant.

Verdict:   Not Guilty

Each of counts 4, 5 and 6 for rape specified the same two year period.

18. The trial upon which the appellant was convicted was in fact his fourth upon those six counts.

19. The first trial on 5 June 1998 resulted in a jury disagreement.

20. The second trial was aborted when the appellant withdrew instructions from his counsel after he had been criticised by the trial judge.

21. The third trial was aborted by the trial judge because of gratuitous prejudicial and unresponsive evidence given by Crown witnesses.

22. Upon the appellant’s fourth trial, the period with respect to count 1 was altered from 17 April 1975 to 18 April 1976 (the period of twelve months specified upon the first three trials) to a period of seven months from 1 November 1977 to 31 May 1978 – i.e. a period between two and two and a half years later than that specified in the first three trials.

23. The appellant contends that his convictions on counts 1 and 5 should be set aside on three grounds –

1. Failure to discharge the jury after unresponsive emotional and highly prejudicial evidence from and conduct by the complainant.

2. The convictions are unsafe and unsatisfactory for these reasons –

1. The late change of the time particularised in count 1;

2. Significant inconsistencies in the evidence given by the complainant and her sister upon count 1 and count 5;

3. Absence of complaint;

4. Inconsistency in verdicts.

3. Leading of evidence of uncharged sexual offences.

24. There was no evidence of any recent complaint by the complainant who at the time of trial was 33 years of age. She had a younger sister, who was called as a corroborating witness. She was 22 months younger than the complainant and 32 years of age at time of trial.

25. In April 1995 the complainant suffered a work related shoulder injury. As a consequence she received “chronic pain counselling” at a pain clinic attached to the Royal Brisbane Hospital. In the course of receiving counselling and treatment at the pain clinic she was “assessed” by an occupational therapist and also by a psychologist to ascertain whether that pain may have had any psychological basis.

26. On 18 June 1997 with a view to obtaining relief from her shoulder pain she gave the Royal Brisbane Hospital her personal history. At that stage she had had nerve blocks performed. She was questioned about her home life and childhood problems if any.

27. In the course of assessment at the pain clinic she had a discussion with Kiley Crone, a psychologist. She then gave the first statement she made to any person (including her mother and her sister) implicating the appellant in any form of sexual misconduct with her. Interestingly she then also asserted that when she was 13 years of age (i.e. from April 1979 to April 1980) her mother’s brother had attempted to have sexual intercourse with her.

28. The complainant on the evidence was born on 18 April 1966 and turned 12 in April 1978 towards the end of the period to which count 1 related. Before amendment the period specified in that count was 17 April 1975 to 18 April 1976. She turned 9 on 18 April 1975 and 10 on 18 April 1976. The first three trials proceeded therefore on the basis that the complainant was 9 years of age when the offence to which count 1 referred was committed.  The fourth trial proceeded on the basis that she was then between 11½  and 12 years of age.

29. Upon the evidence the appellant initially boarded with the complainant’s mother at Holland Park for a period of months. He then moved to a unit at Wynnum in about November 1977. The complainant said she was then “around” 11 years of age. On the evidence she was 11 years and 5 months old in November 1977. Apparently the complainant and her sister and mother used sometimes go to the appellant’s unit at Wynnum. The complainant’s mother would sometimes work overtime as a nurse and the two girls would stay with the appellant in his unit at Wynnum in their mother’s absence.

COUNT 1

30. I will now examine the evidence given by the complainant, her sister, her mother and the appellant relevant to count 1 on the indictment upon which the appellant was convicted.

31. The complainant said that when she and her sister stayed at the appellant’s unit they used to sleep together in a convertible lounge chair that when folded out was the size of a double bed. She said the lounge room was “tiny” and adjacent to a kitchen. There was only one bedroom in the unit and that was occupied apparently by the appellant and/or the mother of the two girls. She said that within the period specified in count 1 (i.e. when she was between 11½ and 12 years of age) she woke up one morning to find the appellant lying on the bed behind her. She said that he had pulled her pyjama pants down and was lying “in behind me rubbing his penis through into the back of me, rubbing on my vagina”.

32. She said that she lay on the converted lounge chair scared looking towards a television set where she could see some cartoons playing. She said importantly that she did not know where her sister was and she just lay on the bed pretending to be asleep. She said that eventually the appellant ejaculated upon her and on her pyjamas where upon she jumped out of the bed and ran up the street towards some shops at Wynnum. She said she did not say anything but simply ran out as fast as she could. She said she thought that it was really early in the morning and she saw one shop “opening up”. She said that as she was running to the shops she was crying. Eventually she said the appellant came up behind her and grabbed her by the arm. She said she then started screaming, “Leave me alone.” She said that the appellant shook her by the arm and said, “N, N look at me.” She said that he was crying and he said something to the effect, “I am sorry it will never happen again. I’m sorry.”

33. She said that the appellant had a tear in his eye and then she was no longer scared but went back with him to his unit where he ran a bath for her and told her to go and have a bath. She said she had a bath and got changed.

34. She confirmed that she did not know where her sister was that morning but that she did notice that the television set was on when she was being dealt with indecently and that although her sister used “to get up really early and watch” she did not see her that morning before she ran out of the unit. She agreed that some 21 years had elapsed between the time of this alleged indecent dealing at Wynnum when she was 11½ to 12 years old and the time when she first complained to the police who took a statement from her.  She agreed that during the whole of that period of time she had never discussed that event either with her sister or any other relatives or anybody at school.  In particular she said she did not tell her mother or any of the persons from whom she had received medical treatment over that period of time prior to telling the psychologist, Kiley Crone.

35. Her sister was called to give evidence to corroborate the complainant with respect to the offence alleged in count 1. She said that one morning while staying with her sister at the Wynnum residence she woke up to hear the complainant saying that her pyjamas were wet.  She said she did not on this occasion see the appellant.  She said after this discussion with the complainant she fell asleep again and she was awoken by the sound of the complainant screaming and running down the front stairs of the flat and the appellant running out of the back of the unit and up the driveway (presumably of the unit).  She said that she ran to the front of the flat and looked out through louvres and yelled out to the appellant, “What’s N doing?”  She said that the appellant told her that her sister was running away from home.  She said that she saw her sister running up the street.

36. She said that some time later the appellant brought the complainant back to the unit. She said that she was “still screaming” and that “he was dragging her back down the street”. She said she did not know what the complainant was saying. She said that she observed the appellant was holding the complainant by the shoulders and was saying, “It’s alright. It’s alright.” And that the complainant was screaming, “No”.

37. She agreed that when she first woke up when the complainant told her that her pyjamas were wet it could have been as early as 6 am.

38. She confirmed that at that stage the appellant was not lying anywhere near either her or the complainant. In fact she said she had not seen the appellant lying anywhere on that lounge that day – or at any other time.

39. She said either ten minutes or an hour could have elapsed between when the complainant woke her to tell her that her pyjamas were wet and when the complainant eventually ran out of the house screaming. Whatever the period of time, she said that there was certainly a period of time that passed between the time when the complainant told her that her pyjamas were wet, when she and the complainant were the only ones in bed together in the sitting room, and the time she heard and/or observed the complainant running from the house screaming.

40. She reiterated in cross-examination that the complainant was screaming as she ran out from the front of the unit.

41. She said that she did not ever ask the complainant for an explanation as to what had happened that morning and that the complainant had never volunteered that information to her.

42. She confirmed that she did not know of anything that had happened on that occasion which might account for what she recalled.

43. She said she had never discussed with the complainant the matter about which she gave evidence and that she still did not know “all the details”.

44. It was contended upon the trial (and upon appeal) that the evidence of the sister was “capable” of corroborating or supporting the evidence of the complainant on count 1.

45. The complainant gave no evidence that she ran screaming from the unit. In fact her evidence was that she started to scream when the appellant caught up with her near a complex of shops at Wynnum. She screamed for some time until she was quietened down and then returned home quite voluntarily with the appellant without screaming and without being “dragged” back according to her evidence. She said that the appellant ran a bath for her and she settled down.

46. The evidence as to the screaming in the house comes from her sister. Undoubtedly whatever the complainant might say about the absence of screaming in the house it would be open to the jury to accept the evidence of her sister (nearly two years younger than her) that she was screaming and this would be capable of corroborating or supporting the evidence of the complainant that she was very upset as a consequence of the appellant’s indecent dealing with her as she described in her evidence.

47. However the only conceivable support for or corroboration of the complainant’s evidence that could be drawn from the evidence of the sister was the fact that the complainant seemed to be very upset and distressed both when she left the house that morning and when she was “dragged back”.

48. According to the appellant the occasion of his chasing the complainant and catching her and bringing her home was her running from the unit in her pyjamas after an abusive interchange with her mother resulting from the complainant’s wetting her bed. Apparently the complainant did for some years frequently wet the bed and this was to say the least a matter of irritation to her mother.

49. Her mother however was called to give evidence and had no recollection of such an event. It was the complainant’s case of course that her mother was not present on the occasion of her running from the house at the time the offence in count 1 was allegedly committed.

50. In my view the evidence of the sister far from giving any real support to the evidence of the complainant contradicted it in every material respect.

51. It would have been quite impossible in my view for the jury properly instructed (and it is conceded that it was properly instructed) on the purpose and effect of “corroboration” to have drawn the slightest comfort in accepting the complainant’s evidence as to the circumstances of the indecent dealing on count 1 having regard to the evidence given by the sister which if accepted would inevitably result in the rejection of the complainant’s evidence of the circumstances of the offence the subject of that count – or if not in its rejection, at least in its failing to support the complainant’s evidence in any material particular.

COUNT 5

52. With respect to the appellant’s conviction upon count 5 – the rape of the complainant in the period 1 January 1980 to 31 December 1981 – a period stretching over two years when the complainant was either 14 or 15 years of age, the complainant gave evidence that she was not sure about this occasion but that it could have been in her second year of Grade 9 studies – in 1981.

53. She said that on that occasion – “he (the appellant) was laying on top of me having intercourse with me and the bedroom door opened”. She said that she knew it was her sister because she heard the person opening the door and say, “What are you doing” or “What do you think you are doing?” She said that the appellant said to her sister, “Do you want to come and join in?” She heard her sister reply “No, I don’t.” She then heard the appellant say “Shut the door.”

54. She said that on that occasion she was not wearing any clothing and neither was the appellant. She said that the appellant was “laying on top of me”. She said there were sheets on the bed but she did not know where they were. She said that she was in year 8 on her 13^th birthday.  One might infer from that that she turned 15 years of age in her second year in Grade 9.  She said she commenced to have her periods when she was “nearly 15”.

55. The complainant said that she could always remember the appellant asking her sister “Do you want to come and join in?” She said in effect that what he asked was whether T would like to join in the sexual activity in which the appellant and she were involved.

56. The sister was called to corroborate the evidence of the complainant on count 5. She said that on one occasion she walked into the bedroom of the house at Holland Park and saw the appellant “on top of N”.  She said the bedroom concerned was that occupied by her mother and the appellant.

57. Interestingly the following evidence was given by the sister in the Crown case –

No objection was taken to that last speculative observation.  I will refer to it later when considering the effect of various unresponsive answers given by the complainant in which vague references were made to uncharged acts of indecency “habitually” committed by the appellant on her.

58. She gave evidence that when she walked into the bedroom she saw that the complainant and the appellant were in her mother’s bed. She said –

“I could see – he turned around and looked over his shoulder.  I could see a bit of N’s arm and leg.”

She said that she knew that it was the complainant because she had seen the appellant take her into the bedroom.  She said that from what she could see it did not appear that the appellant had any clothes on.

59. She said that the appellant said “Shut the door” and that there was no other conversation. She said that as soon as she was told to shut the door she did so. She said that she would then have been in about grade 8 and that the matters relevant to count 5 which she recounted would have occurred about 1979 or 1980.  This of course was inconsistent with the complainant’s evidence that it “could have been in her second year of Grade 9 in 1981”.

60. In cross-examination the sister said that “I can remember when I went into that room like it was yesterday”. She said that although she had been “discussing the incidents” she could remember that day “like it’s a photo in my mind him on top of N”.

61. She referred to being in the gallery on other trials and hearing what was said in them. She said that she had talked from time to time with the complainant about what she could remember of this incident.

62. The sister denied ever saying to the appellant when she entered the bedroom to see him on top of the complainant “What do you think you are doing?” She said she did not remember saying anything at all. She said she did not hear the appellant say, “Well do you want to join in?” or words to that effect.

63. She said that it was likely that as a child for various reasons she had walked into that bedroom while the appellant and her mother were in bed together. She confirmed that she did not actually see the complainant’s face on the occasion that she walked into the bedroom on the occasion of the offence alleged in count 5. She eventually admitted that in a previous trial she had given evidence that she had then observed the complainant to be lying “face down” on the bed. At first she denied giving evidence to this effect but later when it was read back to her she conceded that she must have given that evidence.

64. Because her evidence was called to corroborate or support the evidence of the complainant it is convenient to set forth the evidence that she gave when pressed with this inconsistency. She was asked in cross-examination -

There was then judicial intervention and the cross-examination continued.

65. Undoubtedly the evidence called from the sister on count 5 was “capable” of corroborating or supporting the evidence of the complainant.

66. However the inconsistency between the evidence of the complainant and the evidence of the sister concerning the conversation that took place between her and the appellant when she entered the room to see him on the bed with the complainant must lessen the weight to be given to that evidence.

67. Similarly the change in her evidence from one trial to the other as to whether the complainant was lying face down on the bed with the appellant on top of her or was lying on her back with the appellant on top of her as she said on the trial leading to the conviction of the appellant must also lessen to some extent the weight to be given to her evidence.

68. It must be kept in mind of course that it was necessary for the jury to accept the evidence of the complainant as honest and reliable before they could convict the appellant on any of the charges brought against him.

69. The jury convicted the appellant on only two of the six counts of indecent dealing and rape involving the complainant. Three of the counts of rape were alleged to have occurred in the same two year period and the fourth about twelve months before that period. One might infer from that that with respect to the four counts upon which they acquitted the appellant they were not prepared to accept the evidence of the complainant as sufficiently honest/reliable to make conviction on those four counts safe.

70. The only thing that distinguishes the evidence upon counts 1 and 5 from that called upon the other four counts, is that evidence was given by the sister purporting to corroborate or support the evidence of the complainant on those two counts. The sister was not called to give evidence to corroborate or support the evidence of the complainant on any of the other four counts upon which the appellant was acquitted.

71. It is essential when considering whether the direct evidence of the complainant was supported or corroborated in some material particular by the evidence of an independent person to keep in mind that essentially it was the complainant’s honesty/reliability of which the jury must have been satisfied beyond reasonable doubt. While of course it was unnecessary and indeed undesirable for the jury to consider separately the reliability of the evidence of the complainant before embarking upon a consideration of the evidence called in corroboration, nevertheless at the end of the day it was the complainant’s evidence in this case, whether or not corroborated, which must persuade the jury beyond reasonable doubt of the appellant’s guilt. Moreover the jury could only rationally treat the evidence of the complainant as being supported in some material particular by that of the sister if they had regard to the reliability of both the sister and the complainant in the light of the consistency of the evidence given by both upon the trial before them, and with that given by them upon previous occasions.

72. In this case where on four counts the jury was unpersuaded of the honesty/reliability of the complainant in the absence of any supportive evidence from her sister or from anybody else for that matter, it is convenient to consider just what weight should (not could) have been given by the jury properly instructed as to the evidence given by the sister on the two counts upon which the appellant was convicted. For the reasons I have set forth at some length with respect to count 1 it is my view that in substance the sister’s evidence gave no support whatever to the evidence of the complainant. While it was faintly argued that the sister’s evidence as to the display by the complainant of stress may, theoretically at least, have been preferred by the jury to that of the complainant herself and the direct evidence of the complainant as to the circumstances and opportunity for the appellant to commit the offences charged may have been preferred to that of the sister which contradicted it in every material respect, I take the view that in performing its function under s 668E this court should not adopt such an approach.

73. With respect to the verdict on count 5 one must keep in mind the ages of the complainant and her sister at the time of the alleged offence, the long period of time that elapsed between the events and circumstances to which count 5 related, the period of two years particularised as the time during which this act was said to have occurred, the absence of any recent complaint, the time of the first report to the police, and the fact that the evidence leading to conviction upon count 1 was given between 19 and 20 years after its commission and upon count 5 16 years after its commission.

74. With respect to corroboration of the complainant’s evidence on the six counts including the two counts upon which the appellant was convicted the learned trial judge directed the jury (inter alia) in the following terms –

“I have already warned you of the danger of acting upon N’s evidence having regard to the substantial delay in this case and also having regard to the susceptibility of the human mind to error in such a case.  A person may be convicted in sexual cases on the uncorroborated testimony of the complainant but I warn you of the danger of acting on such testimony unless you find that the complainant’s evidence is corroborated in some material particular by other evidence implicating the accused.  I give you that warning because it is human experience that persons for all sorts of reasons and sometimes for no reason at all tell a false story which is very easy to fabricate but extremely difficult to refute.

Corroboration simply means evidence coming from a source other than the complainant which tends to confirm or support her evidence in a material particular.  In this case there is evidence which is capable in law of corroborating N’s testimony.  Whether it does corroborate her testimony is a matter of fact for you to determine depending on whether you accept the evidence which is capable of corroborating N and depending on how you treat that evidence.

I am going to identify the evidence for you which is capable at law of corroborating N’s evidence.  I repeat whether it does in fact corroborate her evidence is for you to determined.  The evidence comes from T.  It relates specifically to counts 1 and 5 on the indictment.  You may however have regard to this evidence when considering whether the evidence supports N’s story in respect of all the counts on the indictment.”

75. The learned trial judge then identified the evidence capable of corroborating count 1.  That direction was as follows –

“You will recall that count 1 on the Crown case relates to the incident at the flat in Wynnum after which the complainant ran screaming from the flat and ran up the street.  T gave this evidence:

“Did you have any particular memory of any occasion at the (Wynnum) residence when you were stopped there?” - -

“Yes one morning I woke up and N was saying that her pyjamas were wet” - -

“Do you recall something happening when the accused was present?” - -

“I fell back asleep again and after the I woke up once and then fell back asleep and then woke up again with N screaming and running down the front step of the flat and Robert - -”

“Where was the accused?” - -

“He ran out the back down the backstairs of the flat and up the driveway and I ran out the front of the flat, looked out the louvres and yelled out to him, “What’s N doing?” - -

“Right?” - -

“And he said she’s running away from home.” - -

“Right?”

“She was running up the street towards Bay Terrace.” - -

“Did you see her again that morning?” - -

“Yes.  A while later he brought her back.  She was still screaming.  He was dragging her back down the street.” - -

“When you say she was still screaming did you understand what she was saying?” - -

“No not really she was just screaming.” - -

“Anything else?” - -

“I don’t know what she was saying.” - -

“Well he was just sort of had her around the shoulders and was sort of oh he was saying ‘It’s alright, it’s alright’ and she was – I think she was screaming ‘No’.””

76. I have set forth precisely on the evidence of the sister to which the learned trial judge directed the jury’s attention on the question of corroboration of the complainant on count 1.

77. No where did the learned trial judge refer to the evidence actually given by the complainant who did not in fact say that she “ran screaming from the flat” after the incident to which count 1 related.

78. No where indeed did the learned trial judge draw to the attention of the jury the very significant inconsistencies in substance between the evidence given by the complainant as to the circumstances of the commission of the offence alleged in count 1 and the evidence given by the sister to which I have referred.

79. The jury at the conclusion of that direction may have been left with the impression that because the evidence to which the learned trial judge specifically directed their attention “was capable at law of corroborating N’s evidence”, it was therefore less dangerous to act upon the complainant’s evidence than would otherwise have been the case whatever inconsistencies there may be in the substance of the evidence given by the complainant and the sister.

80. Similarly with respect to the direction on corroboration on count 5 the learned trial judge directed the jury’s attention to the sister’s evidence in these terms –

“In relation to count 5 T gave this evidence:

“Now did you notice anything about Mr Kenward’s behaviour with N after he moved in after he lived at Wynnum?”  - -

“Straight after then?”  - -

“Yes.” - -

“No not then only later.” - -

“Did you later?”  - -

“Later yes.”  - -

“What was the behaviour that you noticed?”  - -

“I walked into the bedroom one day and Robert was on top of N .”  - -

“Which bedroom was that?”  - -

“Mum’s bedroom, Mum and Robert’s bedroom.”  - -

“You say Robert was on top of N?”  - -

“Yes.”  - -

“Why did you walk into the bedroom that day?”  - -

“Because I saw him take her into the bedroom and I wanted to know for sure if that’s what he was doing.”  - -

“Well you say you went into the bedroom this day?”  - -

“Yes.”  - -

“And you saw Mr Kenward on top of your sister?”  - -

“Yes.”  - -

“Where were they?”  - -

“In Mum’s bed.”  - -

“Could you see both of them or Mr Kenward only or what was the situation?”  - -

“I could see.  He turned around and looked over his shoulder.  I could see a bit of N’s arm and legs.”  - -

“How did you know that it was N that was in the room?”  - -

“I saw him take her in there.”  - -

“Did you notice whether he had any clothes on?”  - -

“He had a sheet that started to fall down.  He didn’t have anything on at the top.  He didn’t look like he had anything on at all but he had the sheet on and as he turned around the sheet started to fall down and he grabbed it.”  - -

“Right?”  - -

“And he said, ‘Shut the door’.”  - -

“I shut the door as soon as he said that shut the door.”

81. His Honour then continued –

“Now in relation to that I remind you of T’s evidence that on a previous occasion she had said that she had seen N lying face down and that of course differed from what she said in the trial before you.  The evidence of T in this regard is capable in law of corroborating N’s account of what happened concerning count 5.  You are also entitled to have regard to T’s evidence with respect to all the counts on the indictment but it specifically relates to counts 1 and 5.”

His Honour continued –

“As I have said and for the reasons I have indicated it would be dangerous for you to convict in this case by acting on the uncorroborated testimony of the complainant.  I have pointed out to you the evidence which is capable of amounting to corroboration.  It is for you as judges of the facts firstly to decide whether you accept that evidence and secondly if you do whether you have concluded that it does confirm the complainant’s account by tending to show that the offence was committed by the accused.

If you decide that there is no evidence which in your mind so confirms the complainant’s account in such a material respect and I warn you as a matter of law that it would be dangerous to convict the accused on the uncorroborated testimony of the complainant you could do so but to do so would be dangerous.”

82. Again the learned trial judge did not direct the jury to the evidence which had been given by the complainant with respect to the offence alleged in count 5. Neither did he draw to the attention of the jury the inconsistencies between the evidence of the complainant and that of the sister concerning what was said either by the appellant or by T on the occasion when she said she entered the bedroom. His Honour did however draw to the attention of the jury the fact the sister “on a previous occasion - - said that she had seen N lying face down and that of course differed from what she said in the trial before you”. Perhaps the jury recalled the cross-examination of the sister to which I have already referred in detail and appreciated that in respect of her evidence before it, she had on an earlier occasion given evidence quite inconsistent as to a circumstance one might think she would have clearly remembered. She did after all volunteer that the event she observed was like “a photo in my mind him on top of N”.

83. Undoubtedly the evidence of the sister on count 1 to the extent that it independently recorded the complainant’s stress was on one view arguably capable of supporting her evidence as to the commission of the offence – albeit that it was inconsistent with the evidence of the complainant even on the distress to which she said she was subjected prior to the appellant coming into contact with her at the shopping centre some distance from his unit. Theoretically at least it was possible for the jury to prefer the evidence of the sister that the complainant was screaming both when she left the unit and when she was “dragged back” to the unit by the appellant to the evidence of the complainant herself. To that extent the evidence of the sister was “capable” of corroborating that of the complainant as to the indecent dealing on the basis that whatever the complainant may have said about her distress, the sister gave independent evidence of a manifestation of distress at the time she left the unit and shortly afterwards when the appellant brought her back to it.

84. Of course the weight to be given to that supporting evidence as indeed the weight to be given to the evidence of the complainant herself required a comparison of the substance of the evidence given by each to enable the jury to determine its reliability. The jury however were not given the benefit of an analysis of the evidence of each to permit any comparison along these lines.

85. Similarly with respect to the directions on count 5. It was not a question of whether the evidence of the sister was “capable” of supporting that of the complainant with respect to count 5. Whether in fact it could as a matter of common sense support that evidence depended upon the assessment of its reliability. The assessment of the reliability of each of the complainant and the sister required a careful examination of the inconsistencies in the evidence of each to which I have referred.

86. It was pointed out in Chidiac v R (1990-91) 171 CLR 432 that in determining whether a verdict should be set aside as unsafe or unsatisfactory the test is whether it was open to a reasonable jury to be satisfied beyond reasonable doubt of the guilt of the accused.  In determining this question the whole of the evidence must be examined (including the evidence called for the defence) to determine not merely whether there was “sufficient evidence” to support a conviction but whether such conviction was safe because a verdict may be unsafe or unsatisfactory notwithstanding that there was as a matter of law evidence upon which an accused could have been convicted.

87. In that case Mason CJ at 443 observed –

“The appellate court does not discharge its responsibility by finding that there was evidence sufficient to entitle the jury to convict because a verdict may be unsafe or unsatisfactory when there is a sufficiency of evidence for that purpose.”

“In deciding whether the jury acting reasonably should have entertained a reasonable doubt it is the duty of the appellate court to make an independent assessment of the evidence:  Ratten (1974) 131 CLR at pp 515-516;  Chamberlain (No 2) (1984) 153 CLR at p 534; Morris (1987) 163 CLR at pp 463-473.  In making that assessment the court must necessarily take into account the nature and quality of the evidence as this court did in Morris when it set aside the conviction as being unsafe and unsatisfactory because it proceeded upon the jury’s evident acceptance of an admission of guilt which in the opinion of the court was unreliable.”

At 444 Mason CJ continued –

“In resolving that question a court must necessarily recognise that issues of credibility and reliability of oral testimony are matters for the jury.  For that reason if for no other an appellate court will infrequently set aside a conviction as being unsafe because the evidence of a vital Crown witness lacked reliability or credibility.  Nonetheless occasions do arise when a jury proceeds to a conviction when the Crown case rests upon oral testimony which is so unreliable or wanting in credibility that no jury acting reasonably could be satisfied of the accused guilt to the required degree.  Then the appellate court must discharge its responsibility to set aside the conviction as one which is unsafe.  When that happens the court is not substituting its view of credibility for that of the jury;  the court is giving effect to its conclusion that notwithstanding the jury’s apparent willingness to accept the particular witness or witnesses as credible the evidence was having regard to its nature and quality insufficient to satisfy a reasonable jury of the accused’s guilt according to the criminal standard of proof.”

His Honour went on to observe with respect to a court’s jurisdiction to set aside a jury verdict on the ground that it is unsafe –

“The instances in which this jurisdiction has been exercised are of course cases in which there was sufficient evidence to go to a jury to entitle it to bring in a verdict of guilty when nonetheless the quality of the evidence was not such as in the opinion of the appellate court to establish the guilt of the accused beyond reasonable doubt, after taking into account the jury’s assessment of the credibility of the witnesses based on the advantage which it had in seeing and hearing them.”

88. At 452 Dawson J said –

“A court of criminal appeal in considering whether a verdict is unsafe or unsatisfactory is concerned with the question of fact; it is not confined to the question whether there was any evidence to support the verdict, a question which has come to be regarded as a matter of law.  Error of law is a separate ground for setting aside a verdict.  But the question remains whether a reasonable jury must upon the evidence have entertained a reasonable doubt.”

89. At 463 McHugh J observed –

“Notwithstanding that a jury has convicted an appellant on evidence legally sufficient to support the conviction the act has imposed upon the court of criminal appeal the duty to determine whether there has been a miscarriage of justice.  If that court concludes that no reasonable jury would have convicted the accused on the evidence then its duty is to allow the appeal whatever the nature of the evidence relied upon to support the conviction.

In the present case the court of criminal appeal seems to me to have decided the ‘unsafe or unsatisfactory’ ground against the applicants on the basis that those features of the Crown case which allegedly made the convictions unsafe or unsatisfactory related to the credibility of the principal Crown witnesses and that that was ‘a jury question’.  Consequently the court of criminal appeal made no independent assessment of the evidence against the applicants - -

But with great respect the statement applies to the ‘unsafe or unsatisfactory ground’ the same test as that which applies in determining whether as a matter of law there is evidence to support the jury’s verdict.  In my opinion the court of criminal appeal did not carry out the duty imposed upon it - - in that it failed to make its own assessment of the evidence for the purpose of determining what a reasonable jury would have made of the relevant evidence.”

90. In Mackenzie v R (1996) 190 CLR 348 in the joint judgment of Gaudron, Gummow and Kirby JJ it was observed at p 366-367 –

“3.Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone (Unreported, 13 December 1954, per Devlin J) is often cited as expressing the test (see eg R v Hunt [1968] 2 QB 433 at 438; R v Durante [1972] 1 WLR 1612 at 1617; [1972] 3 All ER 962 at 966; cf Archbold, Criminal Pleading, Evidence & Practice, 43rd ed (1995) vol 1 at par 4-457):

‘He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.’

4.Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. (See Mercer v Commissioner for Road Transport and Tramways (NSW) (1936) 56 CLR 580 at 595; Ward v Roy W Sandford Ltd (1919) 19 SR (NSW) 172.)  Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. (R v Wilkinson [1970] Crim LR 176.)”

91. At p 368 their Honours continued -

“5.Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty.(R v Irvine [1976] 1 NZLR 96 at 99; R v Morgan [1981] 2 NZLR 164 at 168-169; R v Cooper (1993) 149 AR 207; Ewaschuk, Criminal Pleadings and Practice in Canada, (1983) at §15.212, requiring that the verdicts be ‘so mutually contradictory or violently at odds in relation to the evidence that they cannot stand together in the sense that no reasonable jury, who had applied their mind to the facts of the case, could have arrived at the same conclusion’: R v Peterson (1996) 106 CCC (3d) 64 at 79; cf Hall v Poyser (1845) 13 M & W 600 [153 ER 251]; Bedford v Crapper [1949] 3 DLR 153.)  More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law. (R v Zundel (1987) 35 DLR (4d) 338 at 401-402 applying R v McShannock (1980) 55 CCC (2d) 53 at 55-56; cf Mack v Elvy (1916) 16 SR (NSW) 313.)  It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. (R v Drury (1971) 56 Cr App R 104 at 105.) It is impossible to state hard and fast rules. ‘It all depends upon the facts of the case.’”

92. In R v Strassberger & Another (CA No 456 and 457, 1998 – 23 March 1999, unreported, BC 9901015) this court held that in determining whether verdicts can rationally “stand together” the test is a very wide one.

93. I have set out in detail the directions given and the failure of the learned trial judge to draw to the attention of the jury the very significant inconsistencies in the substance of the evidence given by the complainant on the one hand and the sister on the other with respect to count 1. I have also drawn attention to the failure of the learned trial judge to draw attention to similar inconsistencies with respect to count 5.

94. In my view the rational explanation for the verdicts of guilty on counts 1 and 5 and not guilty on the other four counts is the fact that the learned trial judge directed the jury that because the sister gave evidence on each of counts 1 and 5 which was “capable” of amounting to corroboration it was for the jury to consider that evidence and determine whether in fact it provided support for the complainant’s evidence. The attention of the jury was not drawn to the inconsistencies between the evidence of the complainant and the evidence of the sister with respect to either count.

95. In my view having regard merely to the matters already considered it would be open to this court to set aside both verdicts. However there are other significant grounds which in my view also support adopting such a course.

FAILURE TO DISCHARGE JURY

96. A ground upon which the appellant places significant reliance is the failure of the trial judge to discharge the jury having regard to unresponsive, emotional and highly prejudicial outbursts and activities of the complainant in the presence of the jury in the course of the trial.

97. In the course of cross-examination of the complainant the following interchange occurred –

“Q:And in all of this you didn’t mention any of the matters about which we’re in court for today?”

A:What do I say to people, what do I say??  ‘Oh, guess what I was molested by my stepfather all my childhood and he knows he did it and still says he didn’t.’  What am I supposed to say to people for God’s sake?  Sits there like – just sits there.  Just sit there for God’s sake.  You make me sick.  I hate you so much.  I’m starting to get a hate for you.  I’m sorry.  Destroyed my whole family.  My relationship with my daughters, everything.  Every time I come to court – this is the sixth time.  I get so angry.  I can’t stand anyone near me.  He doesn’t care about any of that.  If he cared he’d admit what you did to me, for God’s sake, and tell me that you’re sorry.”

98. Upon that outburst Counsel for the appellant sought to make an application in the absence of the jury and of the complainant.

99. As the complainant walked past the jury box she turned towards the appellant in the dock and observed, “You make me sick you do – the whole thing. Disgusting pig.”

100. Counsel for the appellant then sought a discharge of the jury having regard to the unresponsive inflammatory prejudicial remarks by the complainant from the witness box and as she walked past the appellant in the dock in the presence of the jury. He submitted (inter alia) –

“She took the opportunity to make a speech and a highly emotionally charged one, completely irrelevant, completely unresponsive.  In my submission we are not going to be able to overcome that with any sort of direction.  It must make an impression on the jury and it is very very prejudicial for Mr Kenward for that kind of outburst to be heard”.

101. When the complainant made her observations as she walked past the jury box it is apparent from the record that the jury were in the process of leaving the court, as was the complainant, to enable Counsel for the appellant to make his application for a mis-trial in the absence of both.

102. The Crown Prosecutor informed the trial judge that the complainant had been informed that the trial was to be conducted fairly and observed –

“It is really a matter for your Honour as to whether or not it has gone beyond a situation where your Honour can cure it by direction.  The Crown position has to be you can but of course it is a matter for your Honour - -“

103. Counsel for the appellant then pointed out to the trial judge that on the previous trial of the appellant an almost identically strong warning was given to the complainant that the jury would be discharged if there was a continuation of that sort of conduct. On the previous trial the previous trial judge observed before the proceedings had even commenced –

“Perhaps I should say at this stage that on other occasions this matter has come before the District Court the complainant has been quite fractious.  She has been quite prepared to make gratuitous statements in cross-examination and so on.  So would you please tell her Mr Pointing that if she does that and I consider it to be prejudicial to this accused I will discharge the jury.  The trial will not proceed.”

104. The Crown Prosecutor then made this statement –

“Can I indicate your Honour prior to this trial commencing on Monday when I had a conference with the complainant I informed her that this would be the last occasion that this matter would be run as a trial and putting aside yesterday’s unavoidable happenings it is really getting to the stage where the Crown are now in a position where it would be my recommendation to the Director of Public Prosecutions that it not proceed.  I made my position and that position clear to the complainant before this trial commenced.  I particularly wanted it to be understood by the Crown witnesses that any behaviour similar to what has happened in the past could lead to the abortion of this trial and the hope of any further trial proceedings.  I place that on the record.”

105. His Honour then informed Counsel for the appellant that he proposed to permit the trial to continue “at this stage”. He indicated that he proposed to point out to the complainant that if there was any repetition then he would have no hesitation in discharging the jury.

106. The complainant then returned to the courtroom and in the absence of the jury his Honour said this to her –

“I am referring to Counsel – no one has anything but sympathy for you in the position in which you find yourself but if the accused is to have a fair trial then certain things must be observed.  One of those things is this, that when Counsel asks a question it is most important that you as the witness first of all listen to the question and if you understand it respond to it in a responsive fashion.  In other words answer what the question asks.”

To which the complainant replied –

“But he asks me stupid questions that have got nothing to do with it.”

The learned trial judge also informed the complainant that it was most important that she say nothing at all when she was walking to and from the witness stand.  She said that she understood that.

107. The trial continued and with respect to the problem the complainant had had as a child in wetting the bed she was cross-examined –

108. Earlier in the course of cross-examination after agreeing that she did wet the bed as a child the complainant observed –

She continued to observe that “I never wet the bed once I wasn’t at home.  As an adult now I know that’s a psychological symptom of abuse”.

109. The learned trial judge then interrupted the complainant and advised her to listen to the question and answer it responsively.

110. Counsel for the appellant after these non-responsive answers again renewed his application for discharge of the jury. He described the “sotto voce comments” of the complainant that were “coming through loud and clear to the jury” and submitted that it was very prejudicial and emotionally charged. He submitted that the warnings already given by the trial judge had not been heeded by the complainant.

111. The Crown Prosecutor made this observation –

“I think I would have to concede that it is getting very close to the stage, but not yet, in my submission where it can’t be cured by a direction.  I’m not going to keep standing up and saying that it can be cured by direction.  There’s a cigarette paper difference at this stage between me agreeing with my learned friend and not agreeing with my learned friend I have got to say but at this stage I still say that your Honour can correct it by appropriate warnings and directions to the jury.”

112. The Prosecutor conceded that the complainant’s unresponsive observations about there being something in the house which caused her to wet the bed, in the context of her observation that bed wetting was a psychological reaction to abuse was made in disregard of the earlier warnings to which I have referred. His Honour observed that the non-responsive answer of the complainant that “he did a good job, didn’t he”, “really was inexcusable”.

113. His Honour said at that stage that he was becoming very very concerned at the prospect of the appellant receiving a fair trial in the light of the complainant’s conduct. Counsel for the appellant said that the prejudice sustained to that time was too great now to be overcome by any jury direction.

114. The Crown Prosecutor made the following observation –

“Your Honour I have probably been in a better position to look at the jury than my learned friend has and looking at the eyes of some of the female jurors it has been quite easy to notice the effect that this evidence is having on them.  I’m not saying the males are any less affected but the females are particularly from what I have observed following everything she says and they are reacting slightly to some of the comments that she has made quite frankly – particularly that last comment.  So that may help your Honour as well.”

His Honour asked, “Reacting in what way?” to which the Crown Prosecutor observed –

“A tightening of the eyes, a tightening of the lips, just slight evidence of body language that might be relevant to your Honour’s consideration.  I only put that on the record out of a matter of caution so I don’t know if your Honour has been able to observe the jury but I’ve been trying to observe the jury unobtrusively and I have noticed that.  Mind you that may happen whether or not those comments were made but - -“

115. The Crown Prosecutor then made this suggestion –

“If your Honour were to warn her once more about the need for candour and the need to answer questions in a responsive manner then if she again transgresses your Honour would undoubtedly discharge the jury if the right comment is forthcoming to warrant that - -“

116. His Honour declined again to discharge the jury and observed –

“However there is a cumulative effect of all of these observations by the witness and it must be getting perilously close to what is intolerable.  I propose to give the jury a direction at this stage which I will repeat in greater detail if I ever get to sum up in this trial and I propose to ask the witness to come in again and I will attempt to remind her once more of her obligations to the court.  But Mr Richards should there be a repetition of this then I’m afraid I could not allow the trial to continue.”

117. The learned trial judge then once more addressed the complainant and advised her that she was not to make comments and that if she was unable to give evidence “in the proper way” he would simply have to discharge the jury. The learned trial judge then presumably in an effort to overcome the impact of the complainant’s behaviour upon the jury directed them in these terms –

“The charges in this case by their very nature are likely to arouse strong emotions in people.  If a fair trial is to be conducted it is vitally important that you put aside any feelings of prejudice that you may feel towards the accused because of the nature of the charges and because of the nature of the evidence that must of necessity be led by the Crown in support of the Crown case.  You must not allow yourselves to be influenced by feelings of prejudice against the accused or by feelings of sympathy towards the complainant.  You must approach your task with complete objectivity.  You must be dispassionate.  You must be ruthless in ensuring that you are objective and that you do approach your task dispassionately.

The witness is obviously under a good deal of stress and that is only to be expected.  However comments such as ‘he did a good job, didn’t he’ which the witness uttered just before we adjourned are not made in response to a question asked of her by Counsel but such comments may serve to arouse sympathy towards her or prejudice against the accused.  I ask you therefore to completely put out of your minds comments such as that which the witness made and to remember that this accused at this stage is presumed innocent of all these charges.”

118. On the second day of the trial Counsel for the appellant again sought a discharge of the jury and referred in detail to the observations and comments made by the complainant to which I have already referred. He submitted that when the complainant had said “there was something in that house making me wet the bed” she was looking directly at the appellant.

119. Counsel for the appellant made this submission –

“My instructing solicitor next to me has been attempting to observe both the witness and the jury as my learned friend the Prosecutor has had an opportunity to do while I’d been questioning the witness.  He has informed me and will inform your Honour if necessary that he’s never seen such poison looks that Mr Kenward is getting or the defence are getting in fact from the jury.”

120. It was submitted that the complainant’s words “look if he’d say he was sorry” was simply an emotional plea made directly to the jury accompanied by her comment that the appellant’s conduct had wrecked her life, her family, her daughters; that it was a quite deliberate strategy on the part of the complainant and that it was quite impossible by any direction to cure the prejudice that had been aroused deliberately and intentionally on the part of the complainant to “specially plead” matters she thought would achieve the very result of improperly prejudicing the jury about which complaint was made.

121. The learned trial judge however declined to discharge the jury and observed that it could be cured adequately by appropriate directions.

122. In the course of his summing up the learned trial judge directed the jury in these terms –

“You should put out of your mind the remarks made by N during her cross-examination when she became particularly stressed.  They will not assist you in reaching the correct verdicts in this case.  Do not allow yourselves to be prejudiced against the accused as a result of such outbursts or comments.”

123. The essence of the objection taken on behalf of the appellant to the various emotional outbursts of the complainant was that in all probability she was not in fact stressed by reason of the circumstances. Indeed she herself asserted at one stage that she made an observation because she was “angry” because she’d been to court on “six occasions”.

124. In my view the learned trial judge in the circumstances, having regard to what was said and the way it was said by the complainant and to the concessions made by the Crown Prosecutor and the submissions made again and again by Counsel for the appellant as to the observable effects of the outbursts upon the jury, ought to have discharged it. In my view the directions given in the course of the trial and summing up were quite insufficient to remove the prejudicial effect that they must have had upon the jury. In their terms they assumed the outbursts were motivated by the emotional stress to which the complainant was subjected as a consequence of the actions of the appellant about which she gave evidence, rather than by a quite deliberate effort on her part to persuade the jury that she was to be accepted as a reliable and truthful witness whose sexual molestation at the hands of the appellant had had such a psychological effect on her as to deprive her of the capacity to control her emotional outbursts.

125. It is convenient simply to treat the emotional outbursts and unresponsive, inflammatory and prejudicial answers of the complainant in the course of her cross-examination as an important factor to be considered when determining whether upon an examination of the record the conviction of the appellant upon counts 1 and 5 were both unreasonable and unsafe so that it should be set aside pursuant to s 668E of the Criminal Code.

UNCHARGED ACTS

126. Another matter upon which the appellant relies is evidence led by the Crown as to “uncharged acts”.

127. When the trial commenced in the absence of the jury Counsel for the appellant objected to the Crown’s proposal to lead from the complainant evidence of uncharged sexual offences committed upon her. His Honour made the following ruling –

“I am not prepared to rule globally at this stage that any such evidence should not be led.  It seems to me that provided an appropriate direction is given to the jury as to the proper use to which they may be put such evidence of uncharged sexual offences between the accused and the complainant may be admissible.”

128. Upon this intimation the Crown Prosecutor observed –

“In the light of your Honour’s ruling at this stage I won’t open any of the uncharged acts and I will leave it develop.”

129. His Honour observed –

“I would prefer that you did open that evidence and also say something to the jury of the nature of those.”

130. Subsequently Counsel for the appellant formally “placed on the record” his objection to evidence of uncharged acts being led.

131. The learned trial judge observed –

“Again the ruling I made yesterday in that regard remains unchanged.”

132. The record does not disclose what uncharged acts if any were opened to the jury by the Crown Prosecutor.

133. In the course of giving evidence on count 2 (in respect upon which the appellant was acquitted) the complainant gave evidence in chief as follows –

The Prosecutor pursued this question however -

134. In the course of evidence in chief on count 4 (upon which the appellant was acquitted) the following evidence was given –

135. With respect to another count of rape of which the appellant was acquitted the following evidence in chief was given -

Later the following evidence was given -

The act of intercourse involving use of a vibrator was count 6 of which the appellant was acquitted.

136. There was no independent evidence led to support or corroborate this “guilty passion” evidence given by the complainant with the exception of the evidence from her sister led to support her evidence on counts 1 and 5. Essentially it was only the evidence she gave on count 5 that could truly support the complainant’s evidence of any sexual activity between the appellant and the complainant.

137. In Gipp v R (1998) 194 CLR 106 Gaudron J at 112 observed –

“General evidence of sexual abuse on occasions other than those charged does not have that special probative value which renders evidence admissible as ‘similar fact’ or ‘propensity’ evidence and in this case there was no feature of the kind present in R v Ball that made it directly relevant to the question whether the appellant was guilty of the offences charged.  Thus unless there was some subsidiary issue in the trial to which it was relevant the evidence of general sexual abuse was not admissible.

In cases of child sexual abuse the defence case may be conducted in such a way as to raise an issue to which prior abuse is relevant.  As pointed out by McHugh and Hayne JJ in this case evidence of prior sexual abuse may explain lack of surprise or failure to complain.  If they are issues in the trial evidence of general sexual abuse is relevant and admissible.  But they can only be made issues by the way in which the defence case is conducted.  And they were not made issues in this case.  More precisely they had not been made issues when the evidence of general abuse was given by the complainant in chief and repeated in non-responsive answers in the course of her cross-examination.  Thus that evidence was not admissible.”

138. Toohey J at 156-7 accepted what was said by the Court of Appeal in Victoria in R v Vonarx –

“Where evidence of criminal conduct other than that which is charged is being introduced into the evidence on the trial the jury ought to be clearly told that evidence of such conduct can be used by them only if they are satisfied that it occurred and only for the limited purpose of determining whether a sexual relationship existed between the complainant and the accused thereby enabling the evidence relied upon by the Crown in proof of the offences charged to be assessed and evaluated within a realistic contextual setting.  They should be told not to reason that the accused is the kind of person likely to commit the offence charged.

The jury should also be clearly instructed that evidence of other sexual activity does not itself prove the offences charged.  It is of the utmost importance that the jury be told that the accused can be convicted on any count alleged against him - - only if they are satisfied beyond reasonable doubt that the facts alleged in that count occurred.  It is impermissible to convict the accused on the basis that although the conduct so identified had not been proved to the requisite standard some other conduct alleged by the victim has occurred.”

His Honour then continued –

“In the present case it is doubtful that the probative value of the evidence of the complainant concerning alleged events outside the offences charged outweighed the substantial prejudicial effect of such evidence.  However assuming that it did and that the evidence was therefore admissible as tendency evidence, far from giving the stringent warnings required by the law at the point that the evidence was received and at the point at which the concluding instruction was given to the jury the primary judge gave absolutely no warnings about the danger of the use of such evidence.  - -”

139. At 166 Callinan J observed –

“The dangers of admitting evidence of criminal conduct not the subject of specific charges are obvious.  I am concerned also about the danger of admitting so called ‘background’ evidence.  Its reception and the need to explain its purpose and utility have a tendency to introduce into a trial particularly a criminal trial undesirable complications and the notion that there may be various lesser grades of evidence calling for different standards of satisfaction in the minds of the jurors.”

At 168 His Honour continued –

“I do not accept that non-specific highly prejudicial evidence may be led by the prosecution and jurors told that it might provide ‘part of the essential background’ against which the other evidence is to be evaluated.

I would with respect therefore reject the notion that there is a special category of background evidence that may be adduced by the prosecution in a criminal case (absent that is any forensic conduct by the defence that may make it admissible).  If such evidence is to be received it must owe its admissibility to some quite specific other purpose including for example in an appropriate case proof of a guilty passion, intention or propensity or opportunity or motive.  There may also be cases in which a relationship between people may be directly relevant to an issue in a trial and in those circumstances admissible as such.”

140. In my view even if the “background evidence” or the “guilty passion” evidence led from the complainant was admissible in spite of its very general nature, its prejudicial effect far outweighed its probative value. I have set out the evidence so led in paras 117, 118 and 119. In my analysis of that evidence it was not led on those three occasions for the purposes for which it was admissible adopting Gipps (supra).  In its terms it was led to show that the appellant over a period of years habitually committed serious sexual offences against the complainant and that the six charges before the jury were really only samples of his sexual abuse.  As a matter of fairness it ought to have been excluded in the form in which it was led on the three occasions to which I have referred.

141. His Honour directed the jury with respect to evidence of uncharged acts in the following terms –

“- - There are six charges or counts on the indictment but you have heard evidence from N that there were many many other occasions on which she was either raped or indecently dealt with by the accused.  It is necessary that I give you very clear instructions on how you are to approach that evidence.  Those uncharged acts formed background evidence and the evidence of those uncharged acts is led to show the nature of the relationship between the accused and the complainant to you so that you the jury can understand the context of the incidents that are the subject of the six charges.

The Crown alleges that the accused had an unnatural sexual attraction to the complainant and the evidence of the uncharged acts is led to support that proposition.  Without evidence of the background and the continuing nature of the relationship between the complainant and the accused you may have had difficulty in accepting that the offences alleged could have occurred in the way that the complainant claims.  The evidence of uncharged acts must not be substituted for evidence relating to the six specific acts charged.  Further those uncharged incidents cannot be used as showing a general disposition to commit offences of the kind charged.

You must not use the evidence of the other incidents if you accept that those other incidents occurred to reason that if the accused committed those other acts then he must have committed the specific offence that you are considering.

If you have doubts about the complainant’s evidence that the other incidents did occur then those doubts must be brought into account when considering whether you are satisfied beyond reasonable doubt that a specific offence that you are then considering occurred.”

142. I have already referred to the speculative evidence led from the sister to corroborate the complainant’s evidence on count 5 (in para 40).

143. At no stage when the evidence of uncharged acts was being given by the complainant did the learned trial judge advise the jury as to the basis of the admissibility of that evidence or its weight or the purpose for which it might properly be used when considering the evidence upon the charged acts.

144. I have already referred to the directions given by the learned trial judge to the effect that the corroborative evidence from the sister on counts 1 and 5 might be considered to “support N’s story in respect of all the counts on the indictment” - presumably on the basis of “relationship”, “guilty passion”, or “background” evidence. However the jury were not persuaded that it was safe to convict on the four counts upon which they acquitted the appellant – presumably because no corroborative “eye witness” evidence was given by the sister on those counts.

145. About five hours after the jury had retired they asked for redirection in these terms –

“Is there an age of consent to sexual intercourse?”

146. On the evidence and the summing up it was clear that at all material times the complainant was under the age of 16 years at the time the offences were allegedly committed upon her. Her age of course at the time of the rape charges was quite immaterial. The Crown had alleged and the complainant said that she did not consent to the acts of intercourse. The appellant simply denied ever having had intercourse. In any event the jury after another couple of hours returned the verdicts to which I have referred.

147. At the end of the day I find it unnecessary to consider whether each of the grounds argued would of itself justify setting aside the convictions. This is an application under s 668E of the Criminal Code.  I adopt the approach of Barwick CJ in R v Ireland (1970) 126 CLR 321 at 333 where he observed, inter alia, that –

“An aggregate of faults none of which if it were the only fault would afford a justification for making an order for a new trial may properly lead to the conclusion that the trial as a whole has miscarried and that there should be an order for a new trial.”

I would adopt that general approach in this case and set aside the convictions on counts 1 and 5.  The question then arises as to whether a new trial should be ordered on those counts.

148. The appellant has already stood trial on four occasions. It appears clear from the record that the behaviour of the complainant in the witness box described as “fractious” by a District Court judge who had conducted three of them has played a large part in the appellant being put at risk of conviction on those occasions. Had the learned trial judge discharged the jury upon the application of Counsel for the appellant, and having regard to the matters placed before him, in my view, he should have, it seems quite unlikely that the Crown would have embarked upon a fifth trial.

149. I take the view that a properly directed jury which analysed and compared the evidence given by the complainant and that given by her sister could not reasonably have convicted on counts 1 and 5 and acquitted on the other four counts.

150. In my view having acquitted on four counts upon the evidence, the jury should have entertained a reasonable doubt as to the appellant’s guilt upon counts 1 and 5. Upon a careful analysis of the evidence called upon those two counts I conclude that it is likely that the jury were misled by or misunderstood the direction that the evidence of the sister was “capable of corroborating” that of the complainant and failed to give sufficient attention to the significant inconsistencies in the evidence on counts 1 and 5. The admission of evidence of uncharged acts in the form in which it was led together with the behaviour of the complainant which led to Counsel for the appellant seeking a discharge of the jury are additional factors which upon my assessment of the record persuades me that a reasonable jury who acquitted on counts 2, 3, 4 and 6 would also have acquitted the appellant on counts 1 and 5.

151. I would therefore allow the appeal and set aside the convictions on counts 1 and 5 and make no order for a new trial. In doing so I simply take the approach of the majority in Morris v R (1987) 163 CLR 454 encapsulated in the joint judgment of Deane, Toohey and Gaudron JJ at 474.