SUPREME COURT OF QUEENSLAND

1. McMURDO P:  I agree with the reasons for judgment of Cullinane J and with his proposed orders.

2. CULLINANE J:  The appellant was convicted of rape after a trial at the District Court at Bowen.  He was sentenced to imprisonment for eight years.

3. An application for leave to appeal against sentence was abandoned.

4. Three grounds were advanced on the appeal against conviction. Each of these were argued by leave.

5. Two of the grounds of appeal turn upon admission into evidence of a tape recording of an interview of the accused.

6. The complainant gave evidence of having been raped by the appellant. She gave evidence that prior to this having occurred the appellant had forced her to the ground outside the house in which the offence was committed and pinned her down there. A broken necklace was found in this area which it was contended was consistent with the complainant’s account and capable of corroborating it. It was also contended that some marks found on the back of the complainant were consistent with this incident and also capable of corroborating her account.

7. No evidence was led in the course of the prosecution case of any conversation between the accused and the investigating police officer.

8. Upon the completion of the case for the prosecution the accused gave evidence. His account was that the complainant and he had engaged in consensual sexual intercourse initiated by the complainant.

9. In cross-examination by counsel for the prosecution it was put to him that he had forced the complainant to the ground outside the house, something which he denied.

10. It was then put to him that in a conversation with Det Sgt Inmon at Townsville on the 19^th May, 2000, he had informed Inmon that he had pushed the complainant onto the ground and also had informed him that she was crying.  He denied both of these suggestions.

11. Upon such denial the prosecutor asked for a tape recording of the conversation between the accused and Inmon to be played. In the course of the recorded conversation the accused, whose first language is not English, is heard to acknowledge that he did force the complainant to the ground in the course of an argument between them about the whereabouts of his wallet. He is also heard to say that the complainant was crying and that he had wrapped a t-shirt around her face.

12. He acknowledged that it was his voice on the tape and that he had made these statements.

13. He advanced an explanation of having been confused and that he had problems with the language. He continued to maintain that she did not cry.

14. The prosecutor tendered the tape. No objection was taken to its being tendered although counsel who appeared for the accused had foreshadowed that he might object to it upon the grounds that it was to a large extent indecipherable.

15. The tape was admitted in evidence and became Exhibit 43.

16. At the end of the accused’s evidence some discussion took place between the learned trial judge and counsel in which the evidence said to be capable of amounting to corroboration of the complainant’s evidence was identified.

17. Counsel for the prosecution identified a number of pieces of evidence said to have this character including statements made by the accused in the course of the recorded interview in which he is heard to state:

1. the complainant was crying;
2. he pushed her to the ground;
3. he used a t-shirt to wrap around her face.

18. Two grounds were advanced in respect of the admission of the tape. The first is concerned with the point in the trial at which the tape was tendered. The second is a somewhat narrower ground to which I will return later.

19. The introduction of the tape in the course of cross-examination of the accused amounts to evidence in rebuttal. See Pincus JA in Re Burns (1999) 107 A Crim R 330 at 343.  Lawrence v R (1981-82) 38 ALR 1 was also a case in which the relevant evidence was led during the case for the defence.

20. It is a general and fundamental principle governing the conduct of criminal trials that the evidence for the prosecution must be presented before an accused is called upon. In R v Shaw (1956) 30 CLR 365 the principle was stated succinctly in the joint judgment of Dixon, McTiernan, Webb and Kitto JJ at p. 379 in the following way:

“Clearly the principle is that the prosecution must present its case completely before the prisoner’s answer is made.”

21. Per: Gibbs CJ in Lawrence v R (supra) at p 3:

“The principle, authoritatively stated in Shaw v R (1952) 85 CLR 365, that the prosecution must present its case completely before the prisoner’s answer is made, applies with equal force whether the Crown seeks to introduce evidence during the course of the case for the defence or after the close of the case for the defence.  The rule that the prosecution may not split its case, but must offer all its proofs before the prisoner is called upon for his defence, is not merely               technical but is an important rule of fairness.”

22. Evidence by way of rebuttal can only be led if the court permits this to occur. An application to lead such evidence gives rise to considerations which have to be addressed by the court. As Pincus JA said in Re Burns (supra), a case which bears considerable similarities to the present, at p 343:

“Complaint was made of the tender of a tape-recording of a telephone conversation to prove that in April 1997 the appellant, during the course of a long telephone conversation, the critical part of which is set out in the reasons of Muir J, threatened his wife.  The appellant’s outline says that the tape should not have been admitted.  That is in my opinion correct.  It is clear from the five authorities mentioned below that the judge had a discretion to exercise, since the proffered evidence constituted rebuttal and was therefore only admissible subject to the tests in Killick (1981) 147 CLR 565 at 571, and Chin (1985) 157 CLR 671; 16 A Crim R 147; the five cases are Niven (1968) 118 CLR 513, Ghion [1982] Qd R 781, Neville [1985] 2 Qd R 398; (1985) 17 A Crim R 285; Hall [1986] 1 Qd R 462; (1985) 18 A Crim R 329 and Kern [1986] 2 Qd R 209; (1985) 18 A Crim R 191.  This does not appear to have been recognised at the trial, where admission of the tape was not objected to.  Had objection been made, in my opinion the evidence should have been excluded; the circumstance that the evidence was proffered during cross-examination of the appellant, rather than at the conclusion of his evidence, does not make the principle I have mentioned inapplicable.  Rationally, the evidence proved little more than that the appellant, some six months before the occurrence of the alleged offences, had become very angry with his wife and used extravagant language towards her.  If it had proved anything more specific an attempt might have been made to have it admitted in chief, on the principles discussed above in relation to the evidence of Michael.

In Killick the main judgment drew attention to the general rule that the evidence on which the Crown relies should be presented before it closes its case and to the fact that evidence tendered by the Crown after the close of the defence case ‘may assume an inflated importance in the eyes of the jury’:  at 569.  The evidence in question here was given before the defence case closed; but nevertheless it came in at a stage when its impact upon the jury’s view of the appellant’s credibility might have been considerable.  Altogether different considerations would arise, as to the exercise of the discretion to admit evidence of a prior inconsistent statement made by an accused, where the point of inconsistency is one of central importance, although not one on which evidence could necessarily have been led in chief.  An example of that would be a case where the accused, having told the police he knew absolutely nothing of the matter in question, gives evidence at his trial that he was indeed involved but in an innocent way.”

23. As was the case there the tape here was admitted without these matters being adverted to and without objection by counsel for the appellant.

24. While somewhat different considerations might arise where rebuttal evidence is sought to be tendered during cross-examination of the accused and not after the closure of the defence case (see R v Chin (1984-85) 157 CLR 671 at 686 per Dawson J) the prosecution must, in order to obtain leave, be able to point to some exceptional circumstances justifying such a course being taken (see Gibbs CJ and Wilson J at p 676 and Dawson J at p 684).

25. The failure to observe these principles in this case requires in my view the setting aside of the verdict. The evidence tendered was always available to the prosecution which ultimately relied upon its contents in a number of respects as constituting corroboration of the complainant’s evidence. Counsel for the accused conducted his client’s case and cross-examined the witnesses for the prosecution including the complainant without the knowledge that the tape would form part of the corroborative evidence relied upon by the prosecution.

26. We were told that the reason the prosecutor did not lead the evidence in the prosecution case is because it was anticipated that objection might be taken to it because the interview took place whilst the appellant was in custody and without any warning having been administered to him.

27. There is no suggestion that any agreement was reached between the prosecutor and counsel for the appellant to exclude the tape. Rather as it was explained to us this was a judgment which the prosecutor made.

28. It is difficult in these circumstances to see upon what basis it might have been contended that special circumstances existed which justified the introduction by way of rebuttal of the tape.

29. It seems to me that had objection been taken the evidence ought to have been excluded.

30. It is impossible to conclude that the introduction of the tape in the circumstances in which this occurred here without the court adverting to the matters which have to be considered before such a course can be taken made no difference to the outcome.

31. The second ground of appeal in relation to the tape concerns s 18 of the Evidence Act 1977.  It was argued that although the appellant denied that he had had a conversation with the investigating police officer in which he admitted that the complainant had been pushed to the ground and also that she had been crying when these matters were first put to him in cross-examination he admitted that he had said these things after he heard the tape played.  It is contended that in these circumstances the requirements of the section were not met.

32. However, in my view, once a witness has his/her attention sufficiently drawn to the relevant occasion in a way that adequately identifies it and the witness does not admit the statement, the statement can be proved. It is not necessary that the witness persist in the denial after seeing a document or, as here, hearing the tape. In my view the requirements of the section were satisfied.

33. A further ground of appeal was advanced in relation to the instructions which the learned trial judge gave the jury on the subject of fresh complaint. These instructions appear at pages 168 to 170 of the record. The appellant accepts that the directions were adequate in relation to the use which the jury might put the complaint made to the witness Mason, in the event that the jury accepted the complainant’s explanation for not having complained to a taxi driver, one Peters, who drove her from the place where the offence is said to have occurred to her home where Mason, who is her boyfriend, also lived.

34. What counsel for the appellant complains of is that His Honour failed to direct the jury as to the adverse impact upon the complainant’s credibility the rejection of her explanation for not complaining to Peters would have.

35. No redirection was sought about this and it does not seem that the appellant, through his counsel, advanced any substantial argument that her failure to complain to Peters was unreasonable. The complainant was not cross-examined on the subject. Given that the complainant and the taxi driver seem to have been unknown to each other and he was transporting her a short distance from the place where the offence is said to have occurred to her own home where her boyfriend lived this is not perhaps surprising.

36. Whilst I accept that such a direction probably ought to have been given by His Honour to the jury, I do not think in the circumstances of this case the failure to give such a direction would warrant the setting aside of the verdict. That is I think it would be appropriate were it the only ground advanced to apply the proviso and to refuse the appeal.

37. For the reasons already given I think that the conviction should be set aside and a new trial ordered.

38. JONES J:  I had the advantage of reading the reasons of Cullinane J; I agree with those and the order that there be a new trial.

ORDERS:  Allow the appeal, set aside the conviction and order a new trial.