SUPREME COURT OF QUEENSLAND

[1]  KEANE JA:  The appellant was convicted upon the verdict of a jury of one count of rape.  He was sentenced to eight years imprisonment.  The appellant originally sought to appeal against both the conviction and sentence; but the application for leave to appeal against sentence has been abandoned.

[2] The appeal was argued on 21 February 2008.  After hearing the argument the Court decided that the appeal should be allowed, the conviction should be set aside and a new trial ordered on the basis that the reasons for this decision would be provided at a later date.  What follows are my reasons for concluding that the appeal should be allowed and a new trial ordered.

[3] The grounds on which the appellant sought to challenge the conviction are that:

(a) the learned trial judge erred in law by failing to direct the jury in accordance with s 21A(8) of the Evidence Act 1977 (Qld); and

(b) that the verdict of the jury was unreasonable.

[4] It was also argued on behalf of the appellant at the hearing of the appeal that the learned trial judge erred in failing to direct the jury that they were entitled to infer that the evidence of persons, to whom I will refer as AR and PM, had they been called as witnesses, would not have assisted the Crown case (a Jones v Dunkel[1] direction) or that they should not speculate what they might have said had they been called as witnesses or why they were not called.  For reasons which will become apparent it is not necessary to address this argument.

The case at trial

[5] The case for the prosecution was that on the night of 24 November 2005 the appellant raped the complainant, a 28 year old female, at a house in Kowanyama.  The evidence of the complainant was crucial to that case.

[6] The complainant's evidence was that on the evening in question she was drinking with AR and PM (the appellant's brother) in the lounge room of their house.  There, the appellant's mother and father were asleep with two children on the lounge room floor.

[7] The appellant was well-known to the complainant.  The complainant was drunk when the appellant arrived at the house and joined in the drinking. 

[8] AR and PM left the lounge room.  The appellant asked the complainant to sit on his lap but she refused.  He then asked her to go into the kitchen with him.  She said that when she did so she saw that he was holding a white handled knife with which he threatened her telling her to walk into the laundry which was outside the back door of the house but adjacent to it.  The complainant's evidence was that she did as she was told and did not say anything because she was scared of the appellant.

[9] In the laundry the appellant told the complainant to take off her underpants and shorts and lie on the floor.  When she lay on the floor the appellant got on top of her, placed his penis in her vagina and "pushed two or three times".  He was disturbed by a noise and got up without ejaculating.  The complainant said that she pushed him and he ran away.

[10]  The complainant said that she got up and ran back into the house, where she put on her clothes.  She then ran out through the front door of the house and onto the road where she met LP and MM.  She told them that the appellant had raped her and the three of them went to her sister's house where the complainant told her sister and mother what had happened.  Next, the complainant went to Police Sergeant Millward's house where she woke him up and complained to him about the appellant.

[11]  The complainant said in evidence that she was drunk when the incident occurred but that she knew what was happening.

[12]  The complainant also said that during the rape she suffered a "nick" from the knife on her left leg and a bruise on her neck.

[13]  Sergeant Millward gave evidence that the complainant came to his house and woke him up at about 3.50 am.  She claimed that the appellant had raped her.  She was very distressed and was crying.  She showed Sergeant Millward her leg where she said the knife had been pressed against it.

[14]  LP gave evidence that he saw the complainant run out of the house.  He said that she had not been upset.  He said that the complainant told him that the appellant had held a knife to her leg and showed him the "scrape" on her leg.

[15]  Dr Robins examined the complainant.  The vaginal examination was normal.  She had a small bruise below her left ear and a couple of raised, but not reddened, marks on her right thigh.  Dr Robins concluded that the complainant was not significantly drunk.

[16]  No evidence of the appellant's DNA was found in swabs taken from the complainant.

[17]  The appellant's mother gave evidence that she was lying awake on mattresses in the lounge room on the night in question.  She said that the appellant and complainant were drinking with AR and PM.  She said that the appellant went into the back room by himself.  She said that the complainant went home after the appellant went into the back room. 

[18]  The appellant's mother said that at about 4.00 am PM came out of the bedroom and claimed that AR had cut him with a knife.  She said that this knife was the only knife in the house and was kept on the kitchen table.  She said the appellant came out of the back room only after this incident occurred.  She said she found the knife on the veranda where AR had left it and she hid it under a mattress from which she produced the knife when the police arrived about half an hour later to arrest the appellant.

[19]  The appellant did not give or call evidence, but the defence case, put in cross-examination of the complainant, was that the appellant was drinking with AR and PM in the back room of the house when the complainant left the house; and that he did not have intercourse with the complainant.

[20]  On behalf of the appellant, the complainant was cross-examined to demonstrate her unreliability as a witness by getting her to accept that there were some discrepancies in the various accounts which she gave of the incident.  For example, she had not told the police that the appellant had asked her to sit on his lap.  On the other hand, her statement to the police did contain the suggestion that she did not want to go into the laundry with the appellant because "he was really trying to get me in there to have sex", but she had not made this statement either at the committal hearing or during her evidence-in-chief.  She accepted in cross-examination that she had not previously mentioned that the appellant had asked her to lend him $50, and that he went and sat on the front veranda for some time before the incident occurred.

[21]  At trial, before the complainant gave evidence, the Crown Prosecutor applied for the complainant to be allowed, as a special witness, to have a support person sit next to her while she was giving her evidence.  The application was put on the basis that the complainant is "an indigenous lady.  She's quite fearful being in court, very nervous, very foreign environment, and most of the witnesses are the accused's family."

[22]  The learned trial judge directed that the support person "be present in court as a support person whilst the complainant gives evidence.  I direct that [the support person] sit in the chair beside the witness box whilst the complainant gives evidence."

[23]  The learned trial judge ordered that the court should be closed while the complainant was giving her evidence.

[24]  The learned trial judge raised with Counsel for both sides the question whether any special directions were required before the summing-up to the jury.  No directions of the kind now said by the appellant to be essential were sought by Counsel for either side.  No redirection was sought by either side after the summing-up.

The appellant's arguments

Section 21A of the Evidence Act

[25]  The appellant's first argument is that in light of the direction made by the learned trial judge in relation to the support witness, a direction of the kind contemplated by s 21A(8) was necessary.

[26]  Section 21A of the Evidence Act provides relevantly as follows:

"(2) Where a special witness is to give or is giving evidence in any proceeding, the court may, of its own motion or upon application made by a party to the proceeding, make or give 1 or more of the following orders or directions—

…

(d) that a person approved by the court be present while the special witness is giving evidence or is required to appear in court for any other purpose in order to provide emotional support to the special witness;

…

(8)If evidence is given, or to be given, in a proceeding on indictment under an order or direction mentioned in subsection (2)(a) to (e), the judge presiding at the proceeding must instruct the jury that—

(a) they should not draw any inference as to the defendant’s guilt from the order or direction; and

(b) the probative value of the evidence is not increased or decreased because of the order or direction; and

(c) the evidence is not to be given any greater or lesser weight because of the order or direction."

[27]  Section 21A(1) of the Act defines "relevant matter" for a person to mean the person's age, education, level of understanding, cultural background or relationship to any party to the proceeding, the nature of the subject matter of the evidence, or another matter the court considers relevant.  The term "special witness" means:

(a) a child under 16 years; or

(b) a person who, in the court's opinion:

(i)would, as a result of a mental, intellectual or physical impairment or a relevant matter, be likely to be disadvantaged as a witness; or

(ii) would be likely to suffer severe emotional trauma; or

(iii) would be likely to be so intimidated as to be disadvantaged as a witness;

if required to give evidence in accordance with the usual rules and practice of the court.

[28]  The appellant submits that the complainant was treated by the trial judge as a special witness under s 21A(1)(b)(i) of the Evidence Act, her indigenous cultural background being a relevant matter for the purposes of that provision.

[29]  On behalf of the respondent, it is said that the learned trial judge, in allowing the complainant a "support person", did not act under s 21A of the Evidence Act, but under s 5(1)(f) of the Criminal Law (Sexual Offences) Act 1978 (Qld) ("the Sexual Offences Act").  This provision is relevantly in the following terms:

"Whilst a complainant is giving evidence in any … trial, the court shall cause to be excluded from the room in which it is then sitting all persons other than—

…

(f)any person whose presence will provide emotional support to the complainant".

[30]  The respondent argues that the learned trial judge had this provision of the Sexual Offences Act in mind rather than the provisions of s 21A of the Evidence Act when he directed that the complainant be allowed to have a support person sit next to her while she was giving evidence.  The respondent points out that the learned trial judge was anxious to ensure that persons other than those referred to in s 5(1) of the Sexual Offences Act should be excluded from the court while the complainant was giving evidence.  The respondent also points out that there was no application by the Crown at trial to have the complainant declared a special witness pursuant to s 21A of the Evidence Act, and that there was no finding to that effect by the learned trial judge.  There are a number of answers to the points made by the respondent.

[31]  First, the learned trial judge's evident concern to conform to the requirements of s 5(1) of the Sexual Offences Act, does not explain the direction to allow the complainant the benefit of a support person:  that provision is made by s 21A of the Evidence Act; and it is clear from the terms in which the application was made by the Crown Prosecutor that it was the terms of this provision which was, in fact, invoked by the Crown Prosecutor and applied by the trial judge to allow the complainant the benefit of a support person.

[32]  Secondly, the circumstances that the Crown Prosecutor did not seek a formal declaration that the complainant was a special witness in terms of s 21A of the Evidence Act, and that the learned trial judge did not make an explicit finding to that effect before allowing the complainant the benefit of a support person are quite beside the point.  Under s 21A(2) a trial judge may act of his or her own motion to allow a special witness to have the benefit of a support person.  Section 21A simply does not require that a declaration as to "special witness" status be formally sought or made.  All that is necessary is that the accused should have sufficient notice of an intention to accord a witness the status of a "special witness" to enable the accused to present meaningful opposition to that course should the accused be so advised.  That the provisions of s 21A may be invoked and applied without undue formality does not mean that the requirements of s 21A(8) can thereby be set at nought.

[33]  The respondent sought to rely upon the decision of this Court in R v TP[2] as support for the view that s 5(1) of the Sexual Offences Act is a source of power for allowing a special witness the benefit of a support person.  But the issue of present concern was not argued in R v TP, and that decision provides no authority for the argument advanced by the respondent in this case.

[34]  Mr Moynihan SC, who appeared with Ms Prskalo of Counsel on behalf of the appellant, helpfully drew the Court's attention to the circumstance that s 5(1)(f) of the Sexual Offences Act and s 21A(2) of the Evidence Act were introduced into the statute law of Queensland by s 85 and s 63 respectively of The Criminal Code, Evidence Act and Other Acts Amendment Act 1989.  That each of those provisions was a component of a single legislative package confirms that there is a single regime relevantly in operation, under which s 21A(2) of the Evidence Act provides for according a witness special treatment as a "special witness", and s 5(1)(f) of the Sexual Offences Act provides for such a special witness to be exempt from the general exclusion of the public from the court when a special witness who is also a complainant in a case involving an allegation of a sexual offence.

[35]  The learned trial judge did not give a direction to the jury in conformity with s 21A(8) of the Evidence Act.  The appellant contends that this failure is an irregularity of the kind which requires that the conviction be quashed unless this Court is in a position to apply s 668E(1A) of the Criminal Code ("the proviso") on the footing that notwithstanding the error which occurred at trial this Court can be satisfied that no miscarriage of justice has occurred.

[36]  On behalf of the respondent, it is said that Counsel for the appellant did not seek a direction in conformity with s 21A(8) of the Evidence Act.  It is well-established by decisions of this Court that a failure to comply with a provision couched in the mandatory terms of s 21A(8) is an error of law[3] which renders the trial irregular notwithstanding the failure of Counsel for the accused at trial to seek a direction in conformity with the provision.

[37]  On behalf of the respondent, it is argued that the decisions of this Court which emphasise the mandatory nature of the provisions of s 21AW of the Evidence Act, which apply where a jury is considering a complainant's pre-recorded evidence, do not apply in relation to s 21A.  This contention cannot be accepted.  The provisions of s 21A(8) are couched in mandatory language.  Furthermore, they are clearly informed by the same solicitude for the provision of a fair trial as informs the equivalent provisions of s 21AW.  In both cases, the legislation is concerned to ensure that it is made unequivocally clear to the jury that the special arrangements made to assist the complainant should not be taken to reflect adversely upon the accused.  The risk of such adverse pre-judgment is at least as strong where a complainant is seen to be afforded support while giving evidence – which might be thought to reflect a justified fear of the accused – as it is in the case where a young complainant is seen to give pre-recorded evidence.[4]

[38]  The failure to comply with a mandatory requirement for the giving of the directions contemplated by s 21A(8) means that this Court can uphold the conviction only if it is convinced, upon its own review of the whole of the record, that there has been no substantial miscarriage of justice in terms of s 668E(1A) of the Criminal Code notwithstanding the non-compliance with the law.[5]  In the light of the decisions of the High Court in Weiss v The Queen[6] and Darkan v The Queen[7],  and the decision of this Court in R v DM,[8] it must now be accepted that, where there has been a failure to comply with s 21A(8), the proper course for this Court is not to ask whether the non-compliance could have had any adverse effect on the accused's prospects of acquittal, but whether, the trial being irregular, this Court is able to conclude for itself, upon its own review of the record, that there has been no miscarriage of justice.

[39]  In Darkan v The Queen,[9] Gleeson CJ, Gummow, Heydon and Crennan JJ said:

"An appellate court invited to consider whether a substantial miscarriage of justice has actually occurred is to proceed in the same way as an appellate court invited to decide whether a jury verdict should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the natural limitations that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty."[10]

[40]  Whether this Court can now be satisfied on the materials before it of the guilt of the appellant requires a choice to be made between the evidence of the complainant and the evidence of the appellant's mother.  This Court is not in a position to resolve this question upon the record of the trial:  that choice can only be made on the basis of having seen and heard the witnesses at trial, especially, of course, the complainant and the appellant's mother; resolving that contest is "quintessentially a jury question".[11]

[41]  Accordingly, I concluded that the first ground of appeal should be upheld.  On that basis I concluded that the conviction should be quashed and a new trial ordered.  Whether a new trial should be ordered, or a verdict of acquittal entered, depended on the fate of the second ground of appeal.

Unreasonable verdict

[42]  The appellant's contention under this rubric is that, because of the conflict between the evidence of the complainant and the evidence of the appellant's mother, a reasonable jury could not be satisfied beyond reasonable doubt of the appellant's guilt.

[43]  The evidence of the appellant's mother, if it is believed, serves to exculpate him.  If there were no rational basis on which a jury might prefer the evidence of the complainant over the evidence of the appellant's mother, then it would be necessary for this Court to uphold this ground of appeal as well.

[44]  This is, however, as has already been said, a case where the advantage enjoyed by the jury of hearing and seeing the witnesses give evidence might well account for a preference of the evidence given by the complainant over that given by the appellant's mother.[12]  Similarly, it was a matter for the jury to assess the significance of the discrepancies in her accounts of the incident against her prompt complaint in determining whether the complainant's evidence should be preferred to that of the appellant's mother. 

[45]  Under this rubric Mr Moynihan SC argued that this Court should take into account, in determining whether a reasonable jury could convict the accused, the failure by the Crown to call AR and PM to resolve the conflict of testimony between the complainant and the appellant's mother.  The short answer to this argument is that it would be, in my respectful opinion, entirely speculative for this Court to proceed on the footing that AR and PM were in a position to give evidence which might bear on the resolution of the conflict between the witnesses who were called.  This Court is in no position to reach a view as to whether AR and PM were in a position to give evidence which might have resolved the conflict.  It may also be that reasoning of this kind is not germane to the task which confronts an appellate court which is invited to conclude that the evidence called at trial is not capable of supporting a verdict of guilty; but it is not necessary to resolve that question in this case.

[46]  I considered that the second ground of appeal should be rejected.

Conclusion and orders

[47]  For these reasons, I upheld the first ground of appeal against that conviction, and concluded that the appeal should be allowed, the conviction quashed, and a new trial ordered.

[48]  HOLMES JA:  I agree with the reasons of Keane JA.

[49]  MULLINS J:  I agree with Keane JA.