SUPREME COURT OF QUEENSLAND

1. WILLIAMS JA:  I agree with the reasons of Holmes J and with the order she proposes.

2. WHITE J:  At the conclusion of the hearing of these appeals the Court ordered that the appeal be upheld, the convictions quashed and that there be a new trial.  The reasons of the Court were to be published later.  I have read the reasons of Holmes J and agree with them.

3. HOLMES J: The appellants were convicted of three counts of rape committed upon a fifteen year old girl.  The Crown case was that two rapes, to which Moore was a s 7 Criminal Code party, were committed on the complainant by Fielding, while Fielding was similarly liable as a s 7 offender in respect of a single rape by Moore.  The essential issue in the case was whether the appellants’ intercourse with the complainant was consensual.  Each appellant appeals on the ground that the jury should have been discharged because of prejudicial material raised by counsel for Moore in cross-examination of the complainant.

The evidence in the Crown case

4. According to the complainant, she had met the appellants at the Commercial Hotel in Gympie where she was drinking with friends. They persuaded her to accompany them to a room in another hotel, owned by the parents of Moore, for the purpose of smoking “cones”. Another girl, Alina Rossiter, was also invited to go with them but had refused. The complainant was, on her own account, very drunk.

5. At the hotel, the complainant was invited to come into a room and “smoke some cones”. Moore asked Fielding to go and get the cones, and the latter left the room. Moore had begun to push the complainant down on the bed and to touch her breast when Fielding re-entered the room and ordered him out. Moore complied, and Fielding took his place. He undid the complainant’s trousers and took his shorts off. When he attempted to insert his penis into the complainant’s vagina she told him that she was menstruating and was wearing a tampon. He responded by pulling the tampon out and throwing it against the wall (where it, and a corresponding stain on the wall, were later found by police.)

6. The complainant said that Fielding inserted his penis into her, while holding her hands pinned down. He persisted despite her struggles and protests, saying that he wanted to ejaculate inside her. That situation prevailed for about ten minutes, until Moore re-entered the room. Fielding got up and put his shorts on and left. Moore pushed the complainant back onto the bed, held her down and penetrated her. After about five minutes, Fielding returned, ordered Moore out and again raped the complainant. When he desisted, the complainant started to look around for her clothes. She was unable to find her underpants, but was putting her trousers on when Fielding approached and threw two cups of water over her vaginal area. The complainant finished dressing and ran from the room.

7. After the incident at the hotel the complainant ran to the house of friends, where she informed the people there, who included Alina Rossiter and a girl called Sonia Greig, that she had been raped by the appellants at the hotel.  She said that Alina Rossiter took two knives and left the house.  She and Sonia Greig followed her, and found Ms Rossiter inside the hotel knocking on a door.  In cross-examination, the complainant expanded on that evidence a little, to the effect that she had persuaded Alina Rossiter to return to the house, assuring her that she would go to the police about the matter.

8. Sonia Greig gave evidence that she had been awoken at about 3.00 a.m. by the complainant, who told her that the two appellants had raped her. They returned to the hotel and found Alina Rossiter, who entered and asked if the appellants were there. She did not see Ms Rossiter in possession of any knives.

9. Dr George Springhall, a government medical officer, examined the complainant on the day following the alleged rapes. He found a fresh bruise on the inside of her right wrist consistent with the application of a firm grip. There was no other injury or mark of significance on her body. That was, he said, unsurprising, even in a case of sexual assault.

10. The Crown called a witness, Edward Anthony, who was a resident of the hotel where the complainant said she was raped. On the night in question he had become aware of Fielding sitting on the verandah with the complainant. He described Fielding as talking to the complainant and touching her, while she pulled away and gave the impression of not being enthusiastic. Moore arrived about 10 minutes later. Anthony returned to the room where he had been watching television and heard the group moving down to another room. Although his television was turned down, and the walls at the hotel were not thick, he heard nothing untoward. He next saw Moore, who said to him words to the effect of “If things work out all right, you might get a chance too”. Later he saw Fielding who had a swollen eye. He asked what had happened to it and was told “the bitch bit me”. A short time later all three left. The girl was dressed; she was looking down and not speaking.

The evidence in the case for Moore

11. Moore gave evidence in his own defence. He said that he had invited a group of young people with whom he had been drinking and playing pool at the Commercial Hotel back to his parents’ hotel for drinks. Most declined, but the complainant and Alina Rossiter came outside with him and Fielding. Ms Rossiter decided against going to the other hotel but the complainant was prepared to accompany them. There was an incident in which she fell while Ms Rossiter was still in their company. Moore pulled her up by her wrist (which was capable of accounting for the bruise observed on the complainant’s wrist). At that time Fielding asked, “Are youse going to put out or what?” The girls initially giggled. When Fielding repeated the question, the complainant asked “Who with?” and was told, both appellants. Ms Rossiter again declined to accompany them, but the complainant went with the two appellants to the hotel.

12. Once at the hotel, Moore went to buy some beer, and then went to the back verandah to find Fielding and the complainant sitting together and holding hands. He obtained a room key and they entered together. He left the room at Fielding’s request, having a conversation with Mr Anthony while he was outside. Eventually Fielding told him to go into the room. Moore saw the complainant lying on the bed with a blanket over her. They smoked a cigarette, and then had sex together. After he had ejaculated, he thanked her, got up and started to dress. While he was doing so Fielding re-entered the room and announced that he wanted another turn. The complainant made no objection. About fifteen minutes later Fielding came out of the room, and Moore returned to it. He found the complainant dressing. She asked if she could stay for the night, but he refused, inviting her instead to come to a friend’s house for further drinking. She did not accept the invitation, but they parted on amicable terms.

13. For reasons which are obscure, the Crown prosecutor formed the view that Ms Rossiter was not a reliable witness and did not call her to give evidence.  She was, however, called as a witness in Moore’s defence.  She confirmed that she had been at the Commercial Hotel, and said that she had seen the complainant and Fielding with their arms around each other.  At some stage of the evening she had heard one of the appellants mention “cones”, but whatever was said was not addressed to her.  She and the complainant had left the hotel with Fielding and Moore and walked in the direction of the local RSL, where the complainant fell over because she was so drunk.  The appellants had pulled the complainant upright by the arms.

14. At a stage when the complainant was sitting on the garden edge between the appellants, Ms Rossiter heard them ask whether the girls wanted to come back to their place for a couple of drinks with the additional query as to whether they “were going to put out”. She understood the phrase to mean having sex. Ms Rossiter said she and the complainant looked at each other and laughed. The complainant asked her if she wanted to go with the appellants and she said she would not. After initially saying that she would not go either, the complainant decided to go with the appellants, and Ms Rossiter saw them depart. She next saw the complainant about an hour or two later when she complained of rape. According to Ms Rossiter the complainant’s appearance was normal apart from her having watery eyes. She had a cigarette in her hand which she said Moore had given her. Ms Rossiter went with the complainant to the hotel but she did not take any knives. The complainant told her not to worry about it and they returned home.

15. One further witness was called in Moore’s case. Cassandra Parnell said that she saw a girl with the same Christian name as the complainant with the appellants at the Commercial Hotel. She was flirting with them, and following Fielding about.

The introduction of prejudicial material

16. The defence case, as it emerged from cross-examination by Moore’s counsel and the evidence called in Moore’s defence, was one of consent. However, for Fielding the rather problematic approach was adopted of not cross-examining the complainant at all, even to the extent of putting to her the proposition that intercourse was consensual. It was hoped, one presumes, that cross-examination by counsel for Moore would cause the jury to have such a doubt as to the evidence of the complainant that it would not be satisfied of the elements of the offence of rape as against Fielding

17. It should be said at this point that there was nothing inherently implausible in the evidence of the complainant, and nothing was elicited by cross-examination which would have made it obviously unacceptable to the jury. There were some inconsistencies demonstrated between her evidence and that of the other Crown witnesses as well as Ms Rossiter, but they were relatively minor. Thus a great deal turned, for the defence of both Moore and Fielding, on having Moore accepted as a credit-worthy and credible witness when he gave evidence of consensual intercourse. Unfortunately the prospects of that occurring were materially diminished when in cross-examination by Moore’s counsel the following questions were asked of the complainant and answers given:

“Sorry.  Have you ever claimed that Alina told you that these two boys have a reputation, a history for doing this sort of thing?-- Yes, she told me that.

Did she?  When did she tell you that?-- I think it was that night after I’d told her.  I’m not sure.

That is not in your statement, for starters, is it?-- No.

I suggest to you that she didn’t tell you that at all?-- She did.

It’s a very serious thing to say.  Are you quite certain that she said that?-- Yes.”

18. At that point the learned trial Judge intervened, sending the jury out and asking counsel for his reasons for asking the questions. Those reasons did not emerge very clearly. Counsel indicated a desire to ask Alina Rossiter whether she had in fact made the statement, which would suggest a desire to attack the credit of the complainant; although, of course, collateral evidence for this purpose could not properly have been adduced from Ms Rossiter. However, counsel maintained also that the questions went to the issue of consent, without shedding any light on how that could be so. Not surprisingly, the learned trial judge ruled against any further questioning of the complainant or Ms Rossiter on the issue.

19. During the discussion, counsel for Fielding asked the learned trial judge to declare a mis-trial because of the obvious implications of the questioning for his client. In the event, the learned trial judge decided against discharging the jury and instead gave a direction in the following terms:

“Members of the jury, before I asked you to go out [counsel for Moore]  had asked the complainant …….. a question as to whether she had said to Alina something to the effect that both accused had a reputation for this sort of thing and she answered in the affirmative.  Now, that question and the answer is totally irrelevant and I direct you to ignore the question and the answer and, in particular, to draw no adverse inference whatsoever against either of the accused.

Remember that the question was asked by [counsel] who appears for the accused Joel Moore, and that in no way whatsoever should you draw any adverse inference against the accused Jamie Fielding, who is represented by [counsel].  However, you draw no adverse inference against either of them.

Just as I told you earlier today with respect to fresh complaint, the law does not allow people to come and say things that are hearsay;  that is, somebody told me something or said something to somebody.  You cannot use what has been asked and what has been said by the complainant in that question and that answer that occurred before I sent you out in any shape or form.  Nothing that someone asked and nothing that can be said can establish somebody’s reputation.  You must at this point totally disregard the question and the answer and give it no weight whatsoever in these proceedings.

You have to try the case on the evidence and that question and that answer are not evidence.  They are not evidence against the accused or either of them.”

The Crown prosecutor’s cross-examination of Moore

20. That might have made a sufficient end of the matter had not the learned Crown prosecutor seen fit, in cross-examination of Moore, to re-enliven the question of whether there was some practice on the part of the appellants of enticing young women back to the hotel for sexual intercourse. The offending passage is as follows:

“You said that Jamie left the room.  Why on earth would he leave the room?-- Maybe to go to the toilet.

It couldn’t be that you said, “Jamie, go get the cones.”?-- No, because there was no cones.  There was no bong.

Jamie just got up and left the room?-- I didn’t follow him or ask him what he was doing, sorry.  Next time maybe I will.

“Next time”?  What, is this a thing that you two do?-- No, no.

Bring girls back to the room and have your way with them?-- No.  Next time he leaves a room, I’ll make sure I know where he’s going and what he’s doing.”

21. Surprisingly - although this may have resulted from the speed of the exchange - no leave was sought to ask the questions, nor was objection taken, although the questions seemed clearly designed to show at least bad character, if not the commission of other offences. Similar liberties were taken by the prosecutor later in the course of his cross-examination of Moore, when he asked a further series of questions as to marijuana use by Fielding and Moore:

The fact is that you did ask her to go back there to smoke marijuana that night?-- As I said before, no, sorry.

Both you and Jamie said that:  “Come back, have a few drinks, smoke some cones.”-- No, I’m sorry.  Definitely not.

You and Jamie do use that room to smoke marijuana, don’t you?-- Sorry, no.

But you smoke marijuana?-- I have occasionally.

But you weren’t going to that night?-- I had none to smoke.  I don’t buy it to smoke.”

22. Again, no leave was sought to ask the questions as required by s 15 of the Evidence Act 1977; no advice was given to Moore of his right to claim privilege against self-incrimination; and no objection was taken to the course of questioning by either defence counsel.

The effect of the questioning by defence counsel and the Crown prosecutor

23. Mr Martin, counsel for the Crown on the appeal (he was not counsel at first instance) urged a robust approach. He contended that allowing evidence of the order of gossip, promptly gainsaid, to have the effect of disturbing a jury verdict was to have insufficient faith in the capacity of the jury to ignore rumour when properly directed. It was, he said, commonplace in jury trials in small country towns that some form of rumour would come to the ears of jurors. It was regularly expected of jurors that they should be able to put such matters aside.

24. There are some difficulties with these propositions. Firstly, this rumour was given the authority of defence counsel inquiring about it. Secondly, it was not “gainsaid”. Although counsel for Moore put to the complainant that she had not been told by Alina Rossiter that the appellants had a reputation for “this sort of thing”, it was not put to her that the substance of the statement was untrue; that is, that they did not have any such reputation. Indeed, the cross-examination at this point ended on the somewhat hesitant note: “It’s a very serious thing to say. Are you quite certain that she said that?” met by an apparently confident “Yes”. The effect of the learned trial judge’s direction was that the jury should ignore the content of the question and answer as irrelevant; but no direction was given - nor could it have been on the evidence - that it should be disregarded as untrue. At best, the jury was left with the direction that the question and answer were not evidence against the appellants and should be given no weight. Unfortunately, the same subject matter was reverted to in cross-examination by the Crown prosecutor without objection and without comment by the learned trial judge.

25. In relation to the Crown prosecutor’s cross-examination of Moore, Mr Martin argued that Moore’s answer “Next time maybe I will” invited the questions which followed. In any event, he said, the expression “have your way with them” could be interpreted as a reference to consensual intercourse; and references to marijuana use were not to be regarded as prejudicial in the same way as, perhaps, a reference to heroin might be.

26. If the answer given by Moore did amount to an invitation to ask the next question, it was not an invitation which should have been taken up by a responsible prosecutor. He was not entitled to ask questions suggestive of bad character without leave. Had the trial judge’s permission been sought to ask the questions, one might have expected that leave would have been given for cross-examination in relation to the alleged proposal for consumption of cannabis that night. It is not obvious that leave would have been granted in relation to questions about a practice of luring young women back to the hotel room or regular smoking of cannabis. However, the real vice of the questioning lay, as the prosecutor should have been acutely aware, in the harking back to the suggestion of a regular practice of “this sort of thing”, the very issue on which the discharge of the jury had already been sought and refused.

27. The submission that “have your way with them” might be no more than a reference to consensual intercourse raises, of course, the question as to why, if that were so, such a question was asked at all, in the context of rape charges where the fact of intercourse was not disputed. Mr Martin said that the question was clearly asked in a context where there was a dispute between Crown and defence as to whether marijuana was used as a lure to bring the girl in question back to the room. That may well have been the case. The difficulty is that the questions about bringing girls back to the room in combination with those about marijuana use in the room were capable of re-igniting, and indeed seem to have been designed to reignite, the question in the jury’s mind as to whether the accused had a regular practice of “this sort of thing”; that is, enticing girls back to the hotel room on the promise of cannabis, with the intention of forcing intercourse upon them.

28. The questioning about other occasions of cannabis use was independently capable of being prejudicial - use of the substance is, after all, illegal - but it was the combination of that illegal activity with the further suggestion of the appellants’ “having their way” with the girls concerned, that created the real danger. It was capable of unfairly damaging the appellants’ credit, and worse, of suggesting a propensity to rape young women enticed by the promise of cannabis. That was precisely the risk posed by defence counsel’s ill-advised cross-examination of the complainant, and it was now re-enlivened and exacerbated by this cross-examination. Counsel for the defence had put a damaging rumour to the complainant; counsel for the Crown appeared to be endeavouring to establish its truth.

29. The factors to be considered, when it is argued on appeal that a trial judge should have exercised his discretion to discharge the jury, were considered in Crofts v The Queen.^[1] They include “the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact.”^[2] In the present case, it hardly needs saying that the suggestion of a joint practice of sexual predation was capable of being extremely damaging to the appellants. The issue was raised both early and late in the trial, in the first instance as the result of clear incompetence on the part of defence counsel, and in the second as what was, at best, an irresponsible approach by the prosecutor to the questioning of the accused.

30. No direction was given by the learned trial judge in his summing-up as to how the suggestion of propensity should be dealt with or how evidence capable of affecting credit might be used. Indeed it is difficult to envisage, once the cross-examination by the Crown prosecutor had been permitted, what direction he could have given to overcome the cumulative effect of it and the earlier improper questioning by defence counsel. Rather, the proper course, once the situation had thus become irretrievable, was the discharge of the jury. Defence counsel’s earlier application was not, somewhat surprisingly, renewed at this point; but that does not alter the fact that the improper suggestion of propensity, raised by defence counsel and reinforced by counsel for the Crown, had made a fair trial of the appellants impossible. This is not a case in which the court can “say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable”.^[3]

31. In my view, the failure to discharge the jury has occasioned a miscarriage of justice. It is greatly to be regretted, for the complainant’s and the witnesses’ sakes; but the convictions must be quashed and a new trial ordered.