R v Mason[2006] QCA 125

SUPREME COURT OF QUEENSLAND

1. McMURDO P:  The appellant was convicted after a three day jury trial in the District Court at Bundaberg of one count of assault occasioning bodily harm and one count of rape.  He appeals against his conviction contending that the trial judge failed to properly direct the jury first, as to the complainant's distressed condition;  second, as to the complainant's preliminary complaint;  and third, as to the standard of proof because the judge elaborated upon the meaning of "beyond reasonable doubt".  The appellant also contends that a miscarriage of justice has resulted because of some of the submissions made by the prosecutor to the jury which were not corrected by the trial judge.  The appellant contends that these errors in combination amount to a miscarriage of justice.

The relevant evidence

2. Before turning to the grounds of appeal it is useful to briefly outline the relevant evidence.

3. The 27 year old complainant lived with her partner D and her seven children aged from 11 years to four months. On 14 August 2003 she visited her friend and neighbour Y and another friend, N. N is the appellant's sister and Y his niece. The complainant drank two cans of rum and cola. She went home to change and then at about 9.30 pm the three women caught a taxi to a Bundaberg hotel where the complainant drank two bourbons. The appellant and his friend B were present for a time but left before Y went home. The complainant and N left that hotel sometime after 11.30 pm for another hotel where the complainant drank two or three bourbons. She and N met up again with the appellant and B. The complainant had known the appellant for about five years. He was a friend of her partner D.

4. After "last drinks" at about 2.00 am the complainant, N, the appellant and B walked to a nearby taxi rank. N took a taxi to her home on the western side of town. The remaining three planned to share a cab because they were travelling to the other side of town. The complainant asked N to have her cab driver order another cab. The complainant, the appellant and B waited for about half an hour or a little longer but no cabs arrived. The appellant and B were hungry so all three walked to a nearby restaurant. The appellant and B went into the restaurant whilst the complainant waited outside. They came out without ordering any food. B said he was going home and walked off in the direction of his house. The appellant suggested ringing a cab from a phone at Franklins and he and the complainant set off towards the phone.

5. On the way the appellant said he wanted to tell her something. He grabbed her arm and pulled her against a church. She tried to push him off. He kissed her. She told him that it wasn't right, that she loved D and she asked him about his girlfriend K. She continued to try to push him away. He called her a “prick tease” and then punched her on the right cheek. She fell backwards onto the grass. He pinned her right arm down. She tried to push him away with her left hand. She said "Don't do this, don't do this ...". He "just kept going". He pulled her underpants to the side, pulled his penis out and penetrated her vagina with it. She continued to try to push him away but without success. She was crying and asked him not to do it. He got off her, walked away and said "[s]ee how you go", an expression he often used.

6. She set off towards the restaurant. As she reached the corner of the church she looked back and could not see him. She then ran across the railway line. She saw the sign at the police station and ran into the station. She spoke to a police officer and told him what had happened.

7. In cross-examination she agreed that years ago she had slept with D's brother. The appellant had long known this. She denied telling the appellant during the evening that she would agree to have sex with him if, unlike D's brother, he did not tell D. She agreed it would have taken less than 10 minutes for her to travel from the church to the police station. She was uncertain as to the precise time when she was attacked by the appellant. She denied that she manufactured a note which was found by her daughter and which she claimed was delivered to her home one night after the committal proceedings. The note said "Die in Court u Narky Bitch".

8. Police records indicate the complainant arrived at the police station at about 3.40 am.  In response to an earlier call about a disturbance, police officers attended the church grounds at 3.30 am but found nothing other than a small broken stubby beer bottle on the footpath.  The distance from the church to the police station was approximately 800 metres.

9. The first police officer to whom she complained said she looked "quite distressed and frightened, she had her arms wrapped around herself. She kept looking over her shoulder, she was crying". He checked to see she was not being followed. He asked her if she was okay. She said "No", and that she had just been raped. He then took a more detailed complaint from her. When she was recounting the events she was upset, shaking and still had her arms wrapped tightly around herself. He was, however, able to clearly hear and understand her.

10. Another police officer saw her at 3.45 am and described her as "visibly upset and she had a bruise to the right cheekbone area. She was trembling ... and she was shaking her legs, she was sniffling and ... sobbing in her hands, she was holding her head in her hands ... she was saying she felt disgusting ... her arms were crossed against her body". The police officer noticed a slight smell of alcohol but the complainant did not appear intoxicated.

11. The complainant told the doctor who examined her at 6.30 am on 15 August 2003 that she had been raped at 3.00 am. The doctor recorded that she was quiet and had some tears in her eyes. There was a fluid stain on the front of her sleeveless top and some grass stains on its back. She had a bruise on the right cheekbone below the right eye which was tender to touch. She was also tender on the right jaw joint in front of the right ear. She had a bruise on the right upper arm which was tender and some abrasions over the middle of her back from the shoulder blade area to above her waist.

12. A DNA analysis of spermatozoa located on the high vaginal and low vaginal swabs gave a male DNA profile matching the appellant's reference sample.

13. The appellant did not give evidence but it was clear from the cross-examination of the complainant that the defence case was that the appellant had not punched the complainant; that she had consensual sexual intercourse with him; that when she returned home her partner D had become annoyed with her and assaulted her (or, perhaps, that she injured herself) and it was only then that she made a false complaint to police to cover her consensual infidelity with the appellant.

14. D gave evidence that the complainant did not return home on the night of 14 and the morning of 15 August. At about 6.00 am he began looking for her. He went to the police station where he spoke to the complainant. He said that he was not in any way responsible for the bruising to her face. D and a female friend of the complainant, who both saw the complainant before she left her home on 14 August, said that the complainant did not have any bruises or marks on her face or body when she left home that evening.

The judge's directions on distressed condition

15. The prosecutor submitted in his address to the jury that the complainant was distraught, upset, shaking and crying when she spoke to police officers. He particularly emphasized the photographic exhibits which depicted her black eye and that the complainant had given sworn evidence that the appellant hit her. D gave evidence that he did not hit her. The only evidence was that she did not have injuries when she left the home that night and she did not come home until after D met her at the police station early the next morning. The only logical or rational view of the evidence was that the appellant punched her and "... if he hit her then he raped her".

16. The judge in his summing up to the jury gave the following direction relevant to this and the next ground of appeal:

"The Crown refers to her appearance, her physical appearance within ... a very short time of these events.  And that is consistent with her having undergone a dreadful experience.  Her immediate complaint of rape and calling him the rapist is consistent with her story being true.  A complaint made very soon after an event such as this has always been received as something which bolsters the credit of the complainant because it's what you would naturally expect, not for her to go away for three months and make a complaint but to go straight away to someone and make a complaint.

If you accept all of that, the Crown says, that bolsters her credit.  It makes it much more likely, in your minds, that what she's saying is true" (my emphasis).

17. A perusal of the prosecutor's address shows that the judge perhaps over-stated the prosecution's submission. The prosecutor referred to the evidence of distressed condition but did not directly invite the jury to find that it bolstered the complainant’s credit.

18. In summarizing the defence case his Honour stated that defence counsel emphasized that history has shown that on occasions false complaints have been made of rape, and that the experience of those involved in the criminal law supported that contention and sometimes the motive for the falsity never emerges. Defence counsel asked the jury "not to be misled by her appearance, appearances such as her distress in the witness box and her apparent distress when she went to the police station". Later in the summing up his Honour said:

So, it's put to you by the defence that she was telling a lie, an exaggeration to police right from the start to make things seem worse than they really were.

The judge also told the jury that the defence submitted that her shivering was "perfectly consistent with the time of the year".

19. Defence counsel asked the judge to re-direct the jury in these terms: when considering the matter of the complainant's distressed condition they should consider other possibilities for its existence and remember that a distressed condition could be feigned. The judge declined to give that re-direction.

20. The appellant now contends the judge ought to have directed the jury that they could only rely on the complainant's distressed condition if they were satisfied it was genuine and not feigned. He relies particularly on this Court's observations in R v Roissetter.^[1]  Those observations were made in 1984 when absence of corroboration in law of a complainant's evidence required a strong jury warning as to the danger of acting on the uncorroborated evidence.  Whilst supporting evidence is always helpful to the prosecution case, corroboration was then an especially critical part of a prosecution rape case.  In Roissetter the prosecution relied on distressed condition as corroboration of the complainant's evidence.  This Court in Roissetter^[2] nevertheless recognized that whether a particular direction is required as to the use to be made of the complainant's distressed condition will turn on the facts of each case and that sometimes no direction will be necessary.  The more recent case of R v GS^[3] confirms that the direction sought by the appellant is not mandatory.

21. The appellant also relies on this Court's decision in R v Rutherford.^[4]  Rutherford turned very much on its own facts.  The jury convicted Rutherford of one count and acquitted on two others.  The complainant's evidence in respect of the counts on which he was acquitted was not supported by any other evidence.  This suggested that the jury there was not prepared to act on the complainant's evidence in the absence of supporting evidence.  In those circumstances this Court considered that, in the absence of proper directions, the jury may have treated distressed condition as amounting to factual proof of the count on which they convicted.  In addition, the connection between the complainant's distressed condition and the alleged offences in Rutherford was temporally more remote than in the present case.  Those circumstances required a clear direction from the trial judge to avoid undue emphasis being placed upon the distressed condition.  It can and should be distinguished from the present case.

22. In the present case the judge dealt with the issue of the complainant's distressed condition only in his summary of the defence and prosecution case. He did so even‑handedly.  The jury must have clearly understood that it was for them to determine whether they should accept beyond reasonable doubt that the complainant was genuinely distressed because she had been assaulted and raped by the appellant, as the prosecution submitted, or whether there was a reasonable doubt that she may have had consensual sex with the appellant, been bashed by her partner and feigned the allegation of rape to prove that her partner's jealous reaction was ill-founded, as the defence submitted.  The evidence was that her distress was reasonably contemporaneous with the alleged events and was, unless feigned, consistent with them.  More significant than her distressed condition was her black eye and, to a lesser extent, other bruising and scratches.  The judge's directions in context did not amount to an error in law.^[5]  Indeed, had the judge given the directions now sought instead of merely referring to the issue in his summation of the defence and prosecution cases, the appellant may have been disadvantaged by the further highlighting of the issue.  The judicial directions given did not create a risk that the jury may uncritically accept the complainant's distress as consistent with her claims without considering the possibility that it was feigned.  This ground of appeal fails.

The judge's directions as to preliminary complaint

23. The appellant contends that a miscarriage of justice has resulted from the judge's failure to properly direct the jury in relation to the evidence of the complainant's preliminary complaint.

24. Under s 4A Criminal Law (Sexual Offences) Act 1978 (Qld) evidence of how and when a preliminary complaint is made is admissible regardless of when it was made (s 4A(2)).  A judge must not warn or suggest in any way to the jury that the law regards the complainant's evidence to be more or less reliable only because of the length of time before the complainant made a complaint (s 4A(4)).

25. The judge's direction the subject of this ground of appeal is set out above.^[6]  As already noted in discussing the first ground of appeal, his Honour in summarizing the prosecutor's submissions has attributed to him statements not actually made.  The prosecutor did not invite the jury to use the evidence of distressed condition to bolster the complainant's credit and nor did he directly suggest that her timely complaint showed consistent conduct which bolstered her credit.  The prosecution case was not that her recent complaint showed that she had acted consistently with someone who had been raped but rather that the injuries to her face the subject of the charge of assault occasioning bodily harm were consistent with lack of consent to the sexual intercourse with the appellant.  In the course of summarizing (perhaps a little inaccurately) the prosecution case, his Honour seems then to have interpolated a judicial direction to the jury before returning to his summation of the prosecutor’s contentions.

26. The appellant contends that, even accepting that the italicized portion of the judge's directions to the jury was a judicial explanation of how evidence of recent preliminary complaint may be used, it was inadequate. The judge should also have told the jury that whilst the evidence of the complaint was admissible it did not independently prove the facts constituting the offences although it showed consistency of conduct including her non-consent to sexual intercourse with the appellant.

27. Such a direction has been a legal requirement in cases of this sort for over 100 years:  R v Lillyman.^[7]  More recently the High Court in Jones v The Queen^[8] and this Court in R v Aston-Brien^[9] and R v RH^[10] have reasserted the need for a specific direction as to the limited use to be made of evidence of complaint.  Significantly, defence counsel requested a re-direction of the type set out above.  Subject to s 4A(4), nothing in s 4A takes away a judge's obligation to give such a direction where the credibility of the complainant is, as here, central to the prosecution case.  See also the model direction in the Queensland Supreme and District Courts Benchbook.^[11]  The direction should have been given in this case.

28. In addition, the judge's direction "[h]er immediate complaint of rape and calling him the rapist is consistent with her story being true" offended the prohibition in s 4A(4).

29. In all these circumstances there was a risk that the judge's failure to warn the jury as to the use to be made of the evidence of the complaint to police and to the doctor may have caused the jury to take the view that the evidence of consistent complaints was evidence of the actual facts of which she complained. The respondent candidly and fairly conceded that the misdirection was significant so that it is difficult to bring the matter within s 668E(1A) Criminal Code 1899 (Qld).

Standard of proof

30. The learned primary judge gave the following direction as to the standard of proof:

"What the Crown must do if it's to win here, is to establish guilt by proving every essential element of the particular offence with which you are concerned ...  And the Crown has to prove all of those essential elements beyond reasonable doubt.  Reasonable doubt is, as the phrase suggests, a doubt based upon reason, a doubt supported by common sense.  It's not a doubt based on conjecture, guesswork or sympathy.  It's not something that you snatch out of thin air because you don't like having to do an unpleasant duty.  It is a doubt based upon reason and bolstered by your common sense."

31. The appellant contends and the respo to explain or define the concept of reasonable doubt: see Green v The Queen.^[12]  Courts, including this Court, have repeatedly criticized attempts by trial judges to elaborate upon the meaning of "beyond reasonable doubt"^[13] contained in the traditional direction:

"A reasonable doubt is such a doubt as you, the jury, consider to be reasonable on a consideration of the evidence.  It is therefore for you, and each of you, to say whether you have a doubt you consider reasonable.  If at the end of your deliberations, you, as reasonable persons, are in doubt about the guilt of the defendant, the charge has not been proved beyond reasonable doubt."^[14]

32. It is not in every case that such an error will undermine the integrity of the conviction and cause a miscarriage of justice.^[15]  The appellant rightly concedes that the misdirection here as to reasonable doubt did not, on its own, amount to a miscarriage of justice.

An additional matter

33. During the hearing of the appeal the appellant's counsel pointed out that he had recently noticed the following matter. During a break in the cross-examination of the complainant but in her absence and before the closing of court on the first day of the trial, the judge said to the jury:

"I just want to tell you something very briefly about how a central issue in this case can and cannot be proved.  Obviously, in many cases of rape, and this is one of them, obviously, the question of consent is a vital issue.

If consent is proven there's no rape.  If it's not proven, other things having been proved, there is rape" (my emphasis).

34. The italicized comments to the jury are plainly wrong in that they clearly reverse the onus of proof. They are so startling that, as there was no application recorded in the transcript of proceedings to have them corrected, I requested that the State Reporting Bureau check its tape-recording of the judge's comments from which the transcript was prepared. I am informed that the transcript is accurate. The italicized directions to the jury are patently wrong. Although later in the summing up the judge gave lawful and adequate directions as to the elements of the charge of rape which had to be proved by the prosecution beyond reasonable doubt before the appellant could be convicted, he did not specifically correct these serious misstatements of the law. They constitute another concerning error of law in this trial.

The contentious portions of the prosecution address

35. The prosecutor's address to the jury included the following remarks which I set out in some detail to give flavour and context:

"[The complainant] was raped that night.  Her dignity was taken away from her.  But here in this courtroom she's been subjected to allegations of perjury, conspiracy, pettiness, vengeance and just sheer callousness. ...

Knowing that D hit her she decides to go to police and there give an Oscar winning performance, give a performance that Jodie Foster, having won her Oscar for the accused [sic] would just be saying, 'Hey, I'll give it to this girl, she's fantastic.'  And she did all of that to keep D happy and to save face.  Ladies and gentlemen, what a piece of work that woman must be.  According to him she's a lustful wanton housewife prepared to have sex with a man she's dreamt of on a cold, hard ground, prepared to injure herself, to ruin her clothes and not take off her underpants.  Then to get herself home, get beaten up by her partner, think of a plan to frame this same man she's been dreaming of, get back to the police station, give a false account and fool experienced police officers and then fake injuries and fool an experienced doctor.  Oh, and she's done all this while she's supposedly really, really contrite.

And then she's got the nerve to swear on the bible and attempt to condemn an innocent man.  Ladies and gentlemen, that woman you saw in that witness box, do you really believe that that's what she's capable of?  Do you really believe that she has the wherewithal to do all that or is this an attempt by that man - not by [his counsel], he's just doing his job - an attempt by that man to escape justice, to throw as much smear, to throw as much innuendo because well, you know, 'I might as well do it, I might as well do it, what have I got to lose.'  That's what's happened here.  It's just too ridiculous for words" (my emphasis).

36. In summarizing the prosecution case for the jury the judge said:

"Then the Crown asks you to consider whether it's likely that if all this happened that she would then rush off to the police station and put on an award winning acting performance to satisfy a number of police officers who are not very naive about this sort of thing.  And then, says the Crown, do you think she'd turn up here and on the occasion in the lower court and give perjured evidence that an innocent person had done this terrible thing" (my emphasis).

37. It would have been a misdirection had the judge suggested to the jury in a context other than when summarizing the prosecution case that it was unlikely a complainant would invent and adhere to a false story as this reverses the onus of proof: R v G.^[16]  Furthermore, whether the police and the doctor believed the complainant's account to them was irrelevant to the jury's determination of whether they accepted her essential account of events beyond reasonable doubt.  The appellant contends that, even though the judge's observations were made in the context of summarizing the prosecution case, those submissions should not have been made by the prosecutor and the trial judge in repeating rather than correcting them failed to ensure the appellant had a fair trial:  see R v M.^[17]

38. The prosecutor's address to the jury was robust but understandably so in the context of this hard-fought case. Prosecutors as officers of the court and in carrying out their important community role must take care not to knowingly misstate the facts or the law. In our adversarial system courts are reluctant to restrict an advocate's freedom of expression in a jury address. Exceptional cases may, however, arise, like M, where an advocate goes beyond robust and colourful submissions in the heat of the contest to appeal directly to a jury's prejudice and sympathy or to so misstate the law that the trial judge must intervene or even declare a mistrial.  I doubt that the prosecutor's submissions, were they not repeated and thereby emphasized by the trial judge, would here have caused a miscarriage of justice.

39. Unfortunately the prosecutor's comments were repeated without correction by the judge. This may well have distracted the jury from their real task of deciding on the evidence whether the prosecution had proved its case on each count beyond reasonable doubt. Inviting the jury to focus on the court process in considering whether it was likely the complainant, were she not truthful, would persist with her complaint by giving perjured evidence in court, was an irrelevant consideration in carrying out that task. Such a submission is contrary to the onus of proof remaining on the prosecution. Whether the police officers or the doctor believed her complaints to them, was also irrelevant to the jury's task. The primary judge erred in repeating instead of correcting the prosecutor's submissions in the judicial directions to the jury, even though he did so only in his summation of the prosecution case. This is likely to have caused the jury to think that the judge considered these irrelevant considerations were open to them to consider in deciding whether to accept the prosecution case. In context this amounted to an error of law.

Criminal Code s 668E(1A)

40. The appellant has established four errors of law in the judge's summing up. It follows that this Court must allow the appeal against conviction and order a retrial unless under s 668E(1A) Criminal Code it is satisfied that the appeal should be dismissed because no substantial miscarriage of justice has actually occurred:  Weiss v The Queen.^[18]

41. The prosecution case was strong. The complainant was largely consistent on the essential matters in her account of events, although defence counsel found and addressed the jury on a great many inconsistencies in her evidence. The complainant denied the allegations put to her in cross-examination that the appellant had not punched her to the face and that she had consensual intercourse with him. She also denied receiving the injury to her face in some way other than at the hands of the appellant and making a false complaint to cover up her consensual infidelity with the appellant. Other evidence supported her evidence that she did not have the injury to her face when she left her home on 14 August 2003. Her partner gave evidence that he did not assault her on 14 or 15 August 2003. The appellant did not give or call any contradictory evidence.

42. After reviewing the whole of the admissible evidence, albeit without the advantage of seeing the complainant give her evidence, I would be satisfied that it establishes the appellant's guilt on both counts beyond reasonable doubt. But I am not persuaded a properly instructed jury would necessarily reach that same conclusion. The judicial misdirections in combination may have deprived the appellant of the chance of an acquittal. They amount to such a significant denial of procedural fairness that it cannot be said there has been no substantial miscarriage of justice: Weiss v The Queen.^[19]  The appeal should be allowed.

43. I would allow the appeal against conviction, set aside the conviction and order a retrial.

44. JERRARD JA:  In this appeal I have read the President's reasons for judgment and proposed orders, and respectfully agree with them.

45. HOLMES J:  I agree with the reasons of McMurdo P and with the orders proposed.