R v Taylor[2000] QCA 96

COURT OF APPEAL

PINCUS JA

McPHERSON JA

THOMAS JA

CA No 366 of 1999

THE QUEEN

v

TAYLOR, Gary Robert Appellant

BRISBANE

DATE 23/03/2000

JUDGMENT

PINCUS JA:  The appellant and the co-accused were charged with having unlawfully and indecently assaulted the complainant.  It was charged that they were both in company with each other.  Each pleaded not guilty; and after a trial the jury found the appellant guilty and the co-accused not guilty.

There are three arguments advanced on appeal - that the Judge did not sum up adequately on the direction of identification; that his Honour gave a wrong direction on the relevance of motive to lie; and that the verdicts are inconsistent with one another.

The evidence was that the complainant went to a birthday party, had a fair bit to drink, and went to lie down in a bedroom at the house at about 11.30 p.m.  She said that as she awoke at about quarter to 3 in the morning, she could hear voices and when she woke up she saw what she described as two male shadows.  One was kneeling on the bed between her legs and the other was beside her, kneeling against the bed.  She said the long pants she had been wearing had been pulled down, as had her underwear.  She heard words to the effect: "Do it now", and felt a hand on her vagina.  She recognised the co-accused immediately and said that "when I saw the door open, the light shone in their faces, and I saw that it was [the two accused]".

Apart from the complainant's evidence, there was other evidence tending to give some support to her assertion that the offenders were the two accused persons.  Among that evidence was a statement made by the appellant.  This statement was to the effect that at the time when the incident in question was supposed to have happened, he and the co-accused went into what turned out to be the wrong room.  A little later he said, in effect, that he could have pushed the co-accused and he could have fallen on the bed and woken the complainant up.  It does not appear, however, that the strength or weakness of the supporting evidence needs detailed consideration, because it is not argued that the evidence as to identification was too weak to permit of a conviction.

The complaint about directions on identification concentrated initially on the fact that the appellant was said by the complainant to have had on a "Hawaiian sort of print coloured shirt", and jeans.  Another witness gave evidence that from her observation of a video taken on the night in question, the appellant was wearing "long dark pants of some kind", not jeans.  And the witness said that she "would not class the shirt which the appellant was wearing as Hawaiian".  We were told by Mr Bullock, who appeared for the Crown before us, that it became common ground that the clothing was wrongly described.

The Judge told the jury to consider the question of identification and whether they were satisfied beyond reasonable doubt that the appellant had touched the complainant.  He drew attention to the fact that there was no one else to verify or support her evidence that she was in fact touched by the appellant.  He asked them to consider the fact that it was dark at the time, there were no lights on in the room, and went on:

"You consider such things as the description she gave of the persons in the room, the clothing they were wearing, the fact that she'd come out of a deep sleep, the fact that earlier in the night she had consumed a quantity of alcohol, the fact that she observed the two persons in the room for a comparatively short time."

He went on to say, in effect, that experience showed that sometimes mistakes are made by people who are quite honest about identification.  And he told them to look at the identification evidence very carefully.  At a later stage in the summing up, his Honour referred to "the apparently incorrect description she gave subsequently ... of the clothing they were wearing" as an important matter for the jury to consider.  His Honour added, "After all, if she said the persons in the room had one coloured shirt and, in fact, the accused had a different coloured shirt, you may think, well, we've got some doubt as to whether she got the right person."

He also went on to discuss other matters relating to identification but the details of that are of no great relevance.

After the Judge concluded his directions to the jury, there was some lengthy discussion of redirections in the course of which counsel for the appellant made a brief submission that the Judge had not gone far enough in his directions as to identification.  Apparently in response to that, the Judge added by way of directions:

"I would also draw your attention again to something which is very important, and that is the need for you to consider very carefully the identification evidence, the circumstances in which she says that she identified these two persons as the persons - the two accused as being the persons who were in her room at the time and committed this offence.  Bear in mind all the surrounding circumstances, the lighting at the time, her subsequent description of the clothing of the accused, the fact that she'd been drinking and had in fact, if you accept her evidence or if you accept the evidence that she'd had two drags on a marijuana cigarette some time earlier in the evening, and so on.  Consider all the circumstances.  As I say, look at the evidence very carefully."

It is my opinion that the Judge gave perfectly adequate directions on that aspect.  Another point which was raised and to some extent pressed about identification by counsel for Mr Taylor was that the Judge, it was suggested, erroneously made reference to the experience of lawyers about identification.

Mr Rafter drew attention to a passage in the summing-up which reads as follows:

"You see, it has been the experience of lawyers that sometimes, a person purports to identify someone as an offender, genuinely believing that it's the offender, but they are mistaken - honestly mistaken.  They're not deliberately lying.  They're honestly mistaken.  Now, I'm not for a moment suggesting that happened here, but it's something you should bear in mind.  So look at her evidence ... of these two accused as being the offenders very carefully."

Mr Rafter pointed out that the jury would not necessarily be impressed by assertions as to what the experience of lawyers might be and that the jury might prefer to consider the experience of ordinary persons, that is lay persons.  And also (I thought) perhaps some criticism was made by Mr Rafter of the remark the Judge made that he was not for a moment suggesting that it happened here.

It is my view that neither of those criticisms, if they are intended to be made, has any great substance.  It is not an article of faith that the experience of lawyers would be regarded by juries as irrelevant.  Nor in my view is it correct that his Honour would have been taken to be giving a direction that the witness was neither lying nor mistaken.  He was simply trying to make clear, as he had said on other occasions, that it was not his view that counted.

It is my opinion, therefore, that the first ground, the attack on the directions with respect to identification, fails.

The second attack on his Honour's directions is on the following passage:

"If she was deliberately lying, well, why is she deliberately lying?  What motive would she have for lying?  As I understand it, it hasn't been suggested in this case, that there was any particular motive she might have for making up a false account.  However, having said that, I can indicate that it has been the experience of lawyers in the past that sometimes, no apparent motive exists for a complainant making a complaint of a sexual nature, even though the complaint is false.  There may be some motive which is not apparent to the Court.  Sometimes it may be done without any motive, at all."

It is said in the outline that it was agreed that further directions would be given on the following morning but on my reading of the record, that is not so.  The difficulty was that counsel for the appellant's co-accused, who is the one who first raised the matter, did not have with him the authorities on which he relied and that was the reason why the matter was to be further discussed in the morning.

The topic was most recently considered by this Court in T [1999] QCA 376, CA No 179 of 1999, 10 September 1999.  That case did not have to do with the Judge's directions on the point, but rather with the prosecutor's questions and his address.  Thomas JA expressed the view that "the question of motive for a false complaint should not be regarded as territory which a Crown Prosecutor may not enter".  His Honour pointed out that in a case of this sort, "it is almost inevitable that counsel and for that matter the jury will seriously consider whether any motive exists for bringing a false complaint".

The judge said:

"What the Crown must not do, and what the Court must ensure does not happen, is to permit the impression to be gained that the defence has any onus of showing that there was a particular reason for the complainant not telling the truth; or that at the end of the day the absence of any perceived reason for a false complaint strengthens the suggestion that the complainant must be telling the truth."

Chesterman J in T criticised the prosecutor's conduct as follows:

"The implication in the prosecutor's questions, and his argument to the jury, that the complainant's evidence gained credibility because the appellant could not supply a motive for inventing the complaint, were impermissible.  They were irrelevant to the issue whether the Crown had proved beyond reasonable doubt that the appellant committed the offences with which he was charged.  The tactic is pernicious because it implies that the accused bears an onus of proving a false motive, which if not discharged, leads to acceptance of the complainant's evidence."

The passage of which complaint is made in this case falls in the middle of a discussion of the importance of the jury focussing upon the question whether they were convinced by the complainant's evidence.  Neither the appellant nor the co-accused gave evidence.  Before the passage objected to, his Honour said, "But basically, as I said, you've seen her.  You saw her at length.  Ask yourselves what impression did you form of her?  Would you say that she was deliberately lying?  Did she have a bad dream?  Was she mistaken in what happened?"

Without quoting at any further length, it should be said that, in so far as the Judge made remarks which were likely to have conveyed an impression to the jury about his Honour's own opinion, the summing-up as a whole, and this part of it in particular, tended to favour acceptance of the complainant.  That circumstance might have encouraged the jury to think that the questions posed in the passage objected to had a rhetorical flavour, suggesting that the appellant was telling the truth; but it does not appear to me that his Honour suggested that unless there was shown to be a reason why the complainant should lie about the matter his story should be accepted.

I do not believe that anything which was said by the High Court in Palmer [1998] HCA 2, (1998) 193 CLR 1 holds that it is not material for a jury to think about why a complainant, who may possibly be lying rather than mistaken, would lie.  A jury would, reasonably enough, regard it as an impermissible intrusion into their function if they were instructed not to take that factor into consideration.  I cannot accept that it is necessarily wrong for a Judge to tell them that they may do so.  In W, CA No 476 of 1997, 12 May 1998, where a rather similar direction was held not to be objectionable, I suggested it would be better if the Judge left the subject alone.  The same remark might be made here; but it is my opinion that the learned trial Judge's directions would not have misled the jury and this ground of appeal also fails.

The third and last ground of appeal raised by Mr Rafter was that there was no rational basis upon which the jury could convict the appellant of indecent assault while acquitting his co-accused.  Although one would have expected the co-accused to be convicted, if that was the fate of the appellant, the fact is that the Crown case was that it was the appellant who was the principal offender, who actually touched the complainant's vagina.  It may be inferred that the jury was not satisfied that the accused did anything to assist or encourage this act; there was clear ground for discrimination between the two cases.

Another matter which was raised by Mr Rafter, but not by way of complaint, was that the indictment charged that the appellant and his co-accused unlawfully and indecently assaulted the complainant and it also alleged at the time aforesaid they were both in company with each other.  It has been argued, and appears to be common ground, that under section 668F(2) of the Criminal Code it is possible for the Court, in circumstances of this sort, to substitute for the verdict found by the jury a verdict of guilty of another offence.

In accordance with that submission, which I accept, I would substitute for the verdict which was entered against the appellant a verdict of guilty on the following indictment, namely that on 29th day of March 1998 at Gold Coast in the State of Queensland you unlawfully and indecently assaulted the complainant.  Otherwise I would dismiss the appeal.

McPHERSON JA:  I agree.

THOMAS JA:  I agree.

PINCUS JA:  The appeal is dismissed, subject to the order for substitution of verdict which I have mentioned.

...

PINCUS JA:  The sentence imposed at first instance is reimposed.