R v Tribe[2001] QCA 206

SUPREME COURT OF QUEENSLAND

1. McMURDO P:  I have read and agree with the reasons for judgment of Mackenzie J.

2. The appellant's case at trial was that he did not have sexual relations with the complainant; the complainant fabricated the allegation of rape, perhaps because she was psychologically unstable.

3. The learned primary judge gave detailed and unexceptional directions as to consent and proof beyond reasonable doubt of the elements of the offence. There was no complaint as to those directions.

4. The judge emphasised to the jury that the case depended largely on the evidence of the complainant and that it was necessary to scrutinise her evidence with real care and attention before acting on it because of the complainant's history of psychiatric treatment and self-harm. His Honour warned the jury "as to the danger of basing a conviction on her evidence in view of the possibility that her illness might have affected her capacity to give reliable evidence". It is clear from the judge's summing-up that any weaknesses in the complainant's evidence were highlighted by defence counsel at trial and were squarely left for the jury's consideration. The medical evidence and the tape recorded phone call between the complainant and the appellant were capable of supporting the complainant's evidence. There was no evidence contradictory to that of the complainant given or called by the appellant. In these circumstances the jury's guilty verdict was not unreasonable or unsupportable on the evidence.

5. I agree with Mackenzie J's analysis of the contention that the learned trial judge erred in refusing to allow defence counsel to cross-examine the complainant as to her prior complaints to police and counsellors of sexual offences. It may have been useful to have had a voir dire so that the complainant could be cross-examined in the absence of the jury to more satisfactorily ascertain the relevance of the line of questioning sought to be conducted by the defence.  Whilst another judge may have exercised the discretion conferred by s 4 Criminal Law (Sexual Offences) Act 1978 to allow some limited investigation of the earlier complaint to police, it cannot be said that the refusal to do so on the limited information provided by the defence was an improper exercise of discretion in that it was unreasonable or clearly unjust: see House v The King.^[1]

6. I agree with the order proposed by Mackenzie J.

7. WILLIAMS JA:   I have had the advantage of reading the reasons for judgment prepared by Mackenzie J.  I agree with his analysis of the issues raised, and I cannot usefully add anything further.  I agree that the appeal should be dismissed.

8. MACKENZIE J:   This is an appeal against conviction for rape.  The only grounds of appeal argued were the following:

1The verdict of the jury was unreasonable and cannot be supported given the inconsistencies and inherent unreliability of the complainant's evidence;

2The learned trial judge erred in refusing to allow cross-examination of the complainant concerning prior allegations of rape and sexual assault made by her to police and counsellors.

The remaining five grounds were expressly not argued.

9. It is necessary before dealing with the grounds to summarise in some detail the state of the evidence. The complainant gave evidence that she had gone to the home of a female friend, Michelle, intending to stay for the evening meal and to be driven home afterwards since she had little money with her.

10. At her friend's house she met, for the first time, the appellant who was in a relationship with Michelle. During the course of the late afternoon or early evening the appellant made sexually suggestive gestures with a baseball bat while they were sitting on the verandah and made remarks in a like vein to the complainant. These included remarks explicitly referring to having sexual intercourse with her. The complainant replied that she was not going to bed with him.

11. After dinner, Michelle was unwell and the appellant offered to drive the complainant home. She said she would prefer Michelle to drive her, but because she was too sick, the complainant let the appellant take her home in his vehicle. When they got there and she unlocked the door he followed her in, saying he wanted a cup of tea. She put the kettle on.

12. After that the appellant grabbed her and kissed her. When the kettle boiled he stopped and they had a cup of tea, sitting on different chairs in the lounge room. The complainant had a dog which she confined in an upstairs bathroom when she was out. She let it outside and then, when it was ready to come inside again, took it upstairs to the bathroom again and locked it in.

13. Without the complainant realising it, the appellant followed her upstairs and stood near her bedroom door. He grabbed her again, and kissed her and dragged her by the arm into the bedroom. When she struggled he threw her on the bed and "jumped on top" of her. He penetrated her with his finger while they were both still dressed and then undressed her despite her struggles. He squeezed her breasts and kissed her again. He took her t-shirt and bra off first and then her shorts and underpants. He also undressed.

14. Shortly after this his mobile phone rang. He answered it outside the bedroom door, apparently speaking to Michelle. He said the complainant was showing him photographs and he would be home soon. The complainant meanwhile tried to get dressed but he came back and forcibly had sexual intercourse with her against her will.

15. The appellant did not give evidence. Cross-examination of the complainant was to the effect that the appellant had been invited in by her for a cup of tea, that he had not grabbed her and kissed her and that none of the events she alleged to have occurred in the bedroom had happened. It was also put to her that she became upset at one stage about access to her son and the appellant put his arm around her for 20 seconds and gave her a kiss on the cheek. Then he went home.

16. The first complaint was made either the next afternoon or the following day. The complainant thought the former but the person complained to thought the latter. The complainant had visited Michelle's home the day after the alleged rape but had said nothing about it and appeared to be in good spirits. No scientific evidence supporting the version that the appellant had had sexual intercourse with the complainant was found, but because of the time which elapsed before the internal swabs were taken the chance of finding evidence of spermatozoa was greatly diminished.

17. She was examined by a doctor who found evidence of injuries to her vaginal region. One injury was a small tear to the posterior fourchette, consistent with blunt force and consistent in appearance with having been caused at about the time of the alleged rape. The other was to the perineum its age being more imprecise; it was described as unusual by the doctor who was experienced in examining victims of sexual assault, and would have required considerable blunt force or perhaps a gouge with a fingernail.

18. The appellant's case put to the complainant was not that sexual intercourse or other sexual activity had occurred with consent or in circumstances where he had an honest and reasonable but mistaken belief as to consent, but that it had not occurred at all. The jury also heard evidence of a recorded telephone call, made about six weeks after the offence at the instigation of the police, between the complainant and the appellant. While there is no admission of sexual intercourse, the exchanges in the early part of the tape may well have suggested to the jury that they were inconsistent with a denial of sexual activity or with merely comforting the complainant when she became upset. It was only near the end of the tape, when the appellant became suspicious that the conversation was being recorded, that he said that all they had done was kiss and cuddle.

19. In cross-examination there were some variations from her evidence-in-chief and at committal and things not mentioned in her original statement to the police. However, none involved any deviation from her story that she had been raped. The jury may have considered them as matters of detail, not substance.

20. This rather lengthy summary of the evidence provides the setting in which the appeal must be dealt with. It is convenient to consider ground 2 first.

21. The complainant was cross-examined to establish that she suffered from a borderline personality disorder and depression and had a history of psychiatric treatment and self-harm. As the learned trial judge told the jury, there was no evidence of the symptoms or the seriousness of the condition from a medical practitioner. He warned the jury of the possibility that the illness, which the defence characterised as attention seeking behaviour, might have affected the complainant's capacity to give reliable evidence.

22. Ground 2 has its origin in submissions, which the learned trial judge rejected, that the defence should be given leave under s 4 of the Criminal Law (Sexual Offences) Act 1978 to cross-examine the complainant about what were said to be false allegations of rape and sexual assault by her to police and to counsellors. 

23. Section 4 of the Criminal Law (Sexual Offences) Act 1978 relevantly provides:

"Special rules of evidence concerning sexual offences

4.The following rules shall apply in relation to any ... trial in relation to a sexual offence ... –

1.The court shall not receive evidence of and shall disallow any question as to the general reputation of the complainant with respect to chastity.

2.Without leave of the court-

1. cross-examination of the complainant shall not be permitted as to the sexual activities of the complainant with any person;

2. evidence shall not be received as to the sexual activities of the complainant with any person.

3.The court shall not grant leave under rule 2 unless it is satisfied that the evidence sought to be elicited or led has substantial relevance to the facts in issue or is proper matter for cross-examination as to credit.

4.Evidence relating to or tending to establish the fact that the complainant has engaged in sexual activity with a person or persons must not be regarded as having substantial relevance to the facts in issue only because of any inference it may raise about general disposition

Example of inference about general disposition-

An inference that the complainant, because of having engaged in conduct of a sexual nature, is more likely to have consented to the conduct involved in the offence.

Without prejudice to the substantial relevance of other evidence, evidence of an act or event that is substantially contemporaneous with any offence with which a defendant is charged in an examination of witnesses or a trial or that is part of a sequence of acts or events that explains the circumstances in which such an offence was committed shall be regarded as having substantial relevance to the facts in issue.

5.Evidence relating to or tending to establish the fact that the complainant has engaged in sexual activity with a person or persons is not proper matter for cross-examination as to credit unless, because of special circumstances, the court considers the evidence would be likely to materially impair confidence in the reliability of the complainant's evidence.

The purpose of this rule is to ensure that a complainant is not regarded as less worthy of belief as a witness only because the complainant has engaged in sexual activity."

24. It will be seen from this that there is a blanket exclusion of evidence of general reputation with respect to chastity. There is an exclusion, unless leave is given, of evidence or cross-examination as to sexual activities. Leave is not to be given unless one or two circumstances exist. The first is that the evidence sought to be elicited or led has substantial relevance to facts in issue. If it has no other effect than to raise an inference about the complainant's general disposition it is excluded. The second is where the evidence sought to be led or elicited is proper matter for cross-examination as to credit. Evidence relating to or tending to establish the complainant has engaged in sexual activities is only proper material for cross-examination if, because of special circumstances, the court considers the evidence likely to materially impair confidence in the reliability of the complainant's evidence.

25. The evidence concerning complaints made to counsellors was said to be found in a report from a sexual assault counselling service in 1997 to the effect that on numerous occasions the complainant discussed with counsellors complaints of being raped by various men, none of which had been complained of to the police.

26. Mr Chowdhury for the appellant did not press this aspect of the matter, properly in my view. The bare outline of the circumstances of these so-called complaints in submissions to the learned trial judge did not logically establish that any such complaints were false. The fact that the matters were not reported to the police says nothing about their truth or falsity.

27. The other aspect of ground 2 is of more substance. The transcript of the argument before the learned trial judge shows that counsel had a crime report concerning a complaint of rape by the complainant, made about two years before the present act complained of. The effect of the former complaint was that the person complained against (whom she liked) had had sex with her although she had not wished to go as far as they did until she got to know him better. Some hours later she had gone to a bedroom with the same man and they had sex again.

28. It was claimed on each occasion that it was against her will. When interviewed on tape she displayed disenchantment with the man because he had falsely represented himself as unattached.

29. The report also summarised the effect of what others at the house had told the investigating officers. Those people's account was to the effect that what she had said was consistent not only with consensual sexual intercourse but enthusiastic participation at the time. It is also recorded in the transcript of argument at the trial that at committal the complainant had been asked whether she had made any former complaints as to rape. She said she had not but had said she had had someone sexually harassing her. Counsel at trial said she wished to cross-examine as to those matters on the ground that the evidence would be likely to materially impair confidence in the reliability of the complaint's evidence.

30. Mr Chowdhury's first argument before this Court was that the proposed cross-examination was not within the prohibition in s 4. However, the category of cross-examination prohibited without leave under s 4 is as to sexual activities of the complainant with any person. In the context of what the defence would wish to explore in cross-examination, it was an essential component of it that the complainant had been involved in sexual activity with the person complained about. It is therefore subject to the second rule in s 4 of the Act. Rule 3 states that the court shall not grant leave under r 2 unless it is satisfied that the evidence sought to be elicited either has substantial relevance to the facts in issue or is proper matter for cross-examination as to credit.

31. The evidence sought to be elicited concerned an alleged previous complaint which was said to be false because the acts of sexual intercourse were consensual. If the fact that a previous complaint was false were to be elicited it would go to the credit of the complainant. It is not a matter which has "substantial relevance to the facts in issue" within the meaning of r 3. An indication of the scope of that phrase may be gleaned from r 4. The purpose is to exclude evidence where its only purpose is to raise an inference about the complainant's general disposition. The last paragraph of r 4 indicates that generally the notion of relevance to facts in issue will be confined to substantially contemporaneous acts or events or part of a sequence of acts or events that explains the circumstances in which the offence was committed. The notion of "disposition" was explained by the majority (McHugh, Gummow and Hayne JJ) in Bull v The Queen (2000) 171 ALR 613 as referring to a person's tendencies or propensities as things intrinsic to the individual.  The joint judgment also points out that a person's disposition does not necessarily coincide with the estimation of that person by other persons (which is "reputation" for the purposes of this area of the law). 

32. The evidence sought to be elicited raises a collateral issue as to whether the complainant made a false complaint of rape on a previous occasion. As such it might only fall into the category of "proper matter for cross-examination as to credit". The consequence would be that the cross-examiner would be unable to contradict by other evidence what the complainant said in answers to cross-examination, except to the extent that a prior inconsistent statement might be allowed in evidence if denied.

33. Rule 5 defines in a restrictive way the circumstances in which evidence tending to establish the fact that the complainant has engaged in sexual activities with a person becomes proper matter for cross-examination. The question for the trial judge is whether because of special circumstances the court considers the evidence likely to materially impair confidence in the reliability of the complainant's evidence. Because a requirement of special circumstances is a component in the process of deciding whether to grant leave it may be inferred that the legislative intent was that there must be something more than a mere tendency to impair confidence in the reliability of the complainant's evidence.

34. One of the difficulties about the case is that there is nothing to suggest that the complainant herself has made any concession that she has made a false complaint previously. The information before the learned trial judge was somewhat meagre and appears to consist of an edited police report, deleting names of informants. The report records that there was information from other persons at the house where the incident had occurred which was inconsistent with rape having occurred. It appears that the police did not charge the person complained about. The reason why the charge was not proceeded with in all probability was the contrary information from the other persons. There is no basis in the material in the record for determining whether these persons were reliable or unreliable, biased or disinterested. Their identities are not revealed in the report. In the event of a denial by the complainant that she had complained of rape, which seems to be her position having regard to the question, referred to above, which was asked at the committal proceedings, the only recourse to the defence would be to contradict that statement. The person called to give evidence of the prior inconsistent statement could not give evidence of hearsay elements of the investigation, nor of any opinion he had formed about the truthfulness or otherwise of the complaint. Since the issue goes to credit, even if the names of the other persons could be ascertained they could not be called to give evidence as to the events upon which the complaint was based.

35. It is not necessary in this case to attempt to define the ambit of s 4 of the Act comprehensively. In any event, whether special circumstances exist and whether evidence would be likely to "materially" impair confidence in the reliability of a complainant's evidence involve judgments being made on the basis of facts concerning which the right to cross-examine is sought. Without deciding that precise similarity between the events of the previous occasion and the present occasion is necessarily required the circumstances of the previous incident are somewhat different from the present one. In the former the cross-examination would proceed on the basis that it was alleged there was a false allegation as to consent, sexual intercourse having occurred. In the present case the allegation is that there was a false complaint that sexual intercourse had occurred at all on the defence case.

36. The learned trial judge ruled that he would not exercise his discretion to allow cross-examination on the subject of the alleged previous false complaint. Against the background of evidence sought to be elicited, in my view it was within the exercise of a proper discretion to rule in that way. Ground 2 fails.

37. With regard to ground 1 the nature of the case has been outlined in sufficient detail to indicate that it was conducted on the basis that the complainant had lied by claiming that sexual intercourse had occurred. No complaint is made about the summing-up. The case was one where the credibility of the complainant's account was the critical issue. The learned trial judge directed comprehensively on the issues for consideration by the jury, including, notwithstanding the limited evidence on the subject, that the jury give consideration to whether the complainant's psychological or psychiatric conditions might have affected her capacity to give reliable evidence. He also directed them adequately as to the need to have regard to any inconsistencies they found in the evidence.

38. There was cross-examination of the complainant concerning her psychiatric or psychological problems, her attention seeking behaviour and acts of self-mutilation. However, it was not put to her in cross-examination that she had inflicted the uncommon injury to the perineum herself, nor was it put to the jury in defence counsel's address that the jury might consider that as a possibility. Nor was expert evidence called to establish that the kind of illness from which she suffered was likely to render her liable to inflict such an injury to herself, nor that her illness would render evidence unreliable generally.

39. There was also medical evidence which the jury may have concluded was consistent with sexual activity having occurred and the evidence of the taped phone call, from which it would have been open to infer that, at least in the early part of it, the appellant was not denying that sexual activity had occurred.

40. Having regard to the nature of the case before the jury it is not established that the verdict of the jury was unreasonable or that it cannot be supported by the evidence. This ground also fails. The appeal must therefore be dismissed.