SUPREME COURT OF QUEENSLAND

[1]  KEANE JA:  I agree with the reasons of Muir JA and with the orders proposed by His Honour.

[2]  MUIR JA:  The appellant appeals against his conviction on 24 October 2007 after a trial in the District Court of one count of rape.

[3] Before stating the grounds of appeal and the matters relied on by the appellant to support those grounds, it is useful to summarise the evidence.  The prosecution called four witnesses; the 26 year old complainant, the medical practitioner who examined the complainant at about 9.30 am on the morning after the subject events, a female police officer who drove the complainant to a police station in order to have her complaint recorded and the police officer to whom the complainant gave her first formal statement.  The appellant did not give evidence.

[4] The substance of the complainant’s evidence was as follows.  She had known the 51 year old appellant for 9 or so years before 27 August 2006, having worked with him on a work for the dole scheme when she was 17.  On 27 August 2006 she walked from where she was staying in Inala to the house in which the appellant resided at Darra with his elderly mother.  He had a room downstairs and his mother lived upstairs.  Whilst the complainant was with the appellant in his room, two of his male workmates joined them and the group watched television, consumed alcohol and smoked cannabis.  After the other two men left, the complainant had dinner upstairs with the appellant and his mother.  The complainant returned to the appellant’s room and went to sleep on his bed.  She woke up and the appellant offered her a bowl of soup.  She then felt a strange sensation and was “really itchy” between her legs.  She asked the appellant if he had gone out and left her alone with anyone.  The appellant replied that she was just being silly and that nothing like that would happen in his house.

[5] At the request of the appellant, she lay on a sofa.  The appellant took her place on the bed.  She fell asleep and was woken up by something “like a jolting feeling coming from between [her] legs like a big pressure.  The pressure inside her was massive and she had never felt anything like it before.  It was . . . hurtful and uncomfortable . . . the pressure was right up near [her] navel.”  The object was inside her “pretty far” and “felt really big and uncomfortable”.

[6] One of her legs was extended up the backrest of the sofa, her other leg was spread so that her foot was on the floor.  The appellant was sitting on the sofa’s seat in an upright position, between her legs, covered by a blanket.  She punched the appellant and pulled the blanket off him.  She then noticed that he had a beer can in his hand.  He was wearing only underpants and she didn’t notice whether he had an erect penis.  It may be inferred that his penis was not visible.  She was wearing baggy board shorts without underwear.  The shorts had been “pulled up enough that [the appellant] could fit his hand into [the complainant’s] pants without waking [her] up.”

[7] The appellant asked the complainant what she was doing.  She responded that she was going to call the police and she called the appellant a rapist.  She then ran out into the pouring rain and walked to the home of an uncle and aunt where she telephoned the police. 

[8] The doctor who examined the complainant noted a tender reddish area in the back of the opening into the vagina “coming out onto the perineum, the skin just at the back of the vulva.”  The doctor said that his finding was consistent with a history of recent pressure but that could also be consistent with a pre-existing low grade inflammation and other possible causes.

[9] I now turn to the grounds of appeal and the arguments in support of them.

Ground 1.  The trial judge erred in not discharging the jury in consequence of the complainant giving evidence that the appellant had a criminal history.

[10]  After the appellant’s original counsel at trial had cross-examined the complainant at some length about her criminal history, the complainant, unresponsively, interjected, “I could say you’re not . . . calling out Graham’s criminal history are you?”  The appellant’s counsel at trial applied unsuccessfully for the jury to be discharged.

[11]  In his summing-up, the learned primary judge gave the following direction about this evidence. 

“You will recall the complainant woman when she was being cross-examined about her criminal history at one point said, in effect, “Well, what about his criminal history?”  The accused in this trial did not give evidence in the trial so his credit as a witness is not a relevant issue.  Nor is his character a relevant issue.  He is to be convicted or not convicted on the basis of the evidence against him, not on the basis of what his character may or may not be.

However, to do my best to clear the air as far as possible, with the consent of both parties I was given his criminal history, and with their consent I tell you this:  he does have convictions for a number of traffic offences and for a number of street offences.  That is for low grade public nuisance type offences.  He does not have any conviction for any serious offence, nor does he have any convictions for a sexual offence of any kind.  The limited criminal history he does have therefore is irrelevant to the proof or disproof of the charge against him, and I direct you that you should not take it into account in any way at all in the trial.”

[12]  The counsel for the appellant referred to the following observations of Mason CJ and Toohey J in R v Glennon[1]:

“Reception of inadmissible evidence of a prior conviction has been said to offend against one of the most deeply rooted and jealously guarded principles of our criminal law (Maxwell v Director of Public Prosecutions [1935] AC 309, at p 317). And the wrongful reception or transmission of such evidence by or to the jury is calculated to set the prospect of a fair trial at risk. It is then for the trial judge to decide whether it is necessary to discharge the jury in the interests of securing a fair trial (Reg v George (1987) 9 NSWLR 527, at p 533) and, if the trial proceeds and results in a conviction, for a court of criminal appeal to decide whether the accused has been deprived of a fair trial.”

[13]  Reliance was also placed on the following passage from the joint reasons in Crofts v The Queen[2]:

“No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon 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. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.

Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable?”

[14]  The appellant’s counsel made the following submissions. The attack on the complainant’s credibility, including an attack in that regard based on her criminal history, was the cornerstone of the appellant’s case as he did not give evidence.  Reference to the appellant’s criminal history undermined that attack. The fact that the appellant’s criminal history contains entries which are different in nature to the subject offence is irrelevant.  The admission of evidence of the appellant’s prior criminal history also operated to circumvent the operation of s 15(2) of the Evidence Act 1977 (Qld) and had the effect of withdrawing the appellant’s right to silence.  No direction could have overcome the prejudicial effect of the erroneous reference to the appellant’s criminal history.  The direction in that regard “merely highlighted and expanded upon the reference to the criminal history and thus his questionable character.”  The prosecution case was not strong and it cannot be said, with assurance, that, but for the admission of the inadmissible evidence, the conviction was inevitable.

Grounds 2 and 3.  Evidence of uncharged acts and of irrelevant statements was wrongly admitted.  The prejudicial effect of that evidence was substantial compared to its limited probative value and its admission has led to a miscarriage of justice.  The trial judge erred in giving the jury no directions as to the proper use that could be made of this evidence.

[15]  The evidence upon which these grounds are based is as follows.  In her evidence-in-chief the complainant made reference to the banter of the appellant and his workmates in the workplace, which included statements which the complainant “felt were inappropriate”.  She was asked if some of those things were said by the appellant and replied in the affirmative.  The following exchange then occurred:

“Can you tell us what sort of things those were?--  One of the things that the men would say to each other would be, ‘Oh, I’d like to rape her…’, and I thought that it was just a joke, and I put it off, you know.  Like I never thought that anything like this would happen to me.

. . . was there ever any physical contact between yourself and Mr Hess prior to this night?--  Couple of times Graham would walk past me and like slap me on the arse or – or brush past me and brush me on the boobs or whatever, like, you know, and I always put that down to being the only girl on the crew and the boys’ sick sense of humour.

On the occasions when you say Mr Hess had brushed past your breast or touched your bottom, would you ever say anything to him?--  I’d pull him up and I always made – made sure that like I said that it was – that I didn’t like that, or I’d make some kind of comment to say that it wasn’t – that I didn’t want it to keep happening to me.”

[16]  It is submitted that the above complaints of uncharged acts[3] were generalised and lacked the particularisation necessary to enable the defence to deal properly with them.[4]  That evidence, although of no probative value, was highly prejudicial and its admission has caused a miscarriage of justice.[5]  The nature and significance of the evidence of the uncharged acts and the use to which it could be put were not explained in the summing-up as they should have been. 

[17]  The following passage from the reasons of McHugh J in BRS v R[6] concerns the directions required where propensity evidence is properly admitted:

“If evidence revealing a criminal or reprehensible propensity is admitted, the trial judge must give the jury careful directions concerning the use which they can make of the evidence. If the evidence is admitted for a reason other than reliance on propensity, the judge must direct the jury that they can use the evidence for the relevant purpose and for no other purpose. In some cases, the judge may need to be more specific. He or she may need to direct the jurors that they cannot use the evidence for an identified purpose. If the evidence is admitted because the Crown wishes to rely on the accused's propensity as an element in the chain of proof, it is especially necessary that the judge give the jurors clear directions as to the manner in which they may use the propensity evidence.”

[18]  With reference to the above passage, it is submitted that the failure to give directions concerning the uncharged acts gave rise to a real danger that the jury may have improperly used the subject evidence to arrive at their verdict.  The comments by workmates about a desire to rape the complainant were not clearly attributed to the appellant; they were inadequately particularised, irrelevant and inadmissible. The trial judge erred in not directing the jury to ignore them.

Ground 4 - the verdict was unsafe and unsatisfactory

[19]  Cumulatively, the irregularities in the conduct of the trial, where the prosecution case was not strong, lead to the conclusion that the trial miscarried and a new trial should be ordered.[7]

Consideration of Ground 1

[20]  The primary judge concluded that any potential for prejudice which might arise from the evidence of the appellant’s prior criminal history could be overcome by the direction he gave.  That conclusion was correct.  The judge explained to the jury that the appellant had had no convictions for sexual offences, offences involving dishonesty, or even for serious offences.  The jury was directed that the appellant’s “limited criminal history” was irrelevant and that they were not to take it into account in any way at all.  In the light of the direction and the information contained in it, it would have been bordering on the irrational for the jury to conclude that the appellant’s criminal history had any bearing on the question of whether or not he had committed the subject offence.  The jury’s determination was dependent, in substance, on whether they believed the evidence of the complainant.  In that regard their focus would have been on her prior criminal history, which included some    23 convictions. It is improbable that, in the circumstances I have outlined, the revelation that the appellant had committed some minor criminal offences could have adversely affected the jury’s assessment of the complainant’s credibility or made the jury more disposed to convict.  It follows that, in my view, the primary judge did not err in not acceding to the request to discharge the jury.

Consideration of Grounds 2 & 3

[21]  The evidence of inappropriate workplace touching of or physical contact with the complainant by the appellant was inadmissible, as was the evidence of comments about a desire to rape unidentified females, or, on one construction of what was said, the complainant.  That evidence did nothing to explain, in any relevant way, the relationship between the complainant and the appellant or the conduct of either the appellant or the complainant on the evening of 27 August.[8]  That was particularly so as the conduct in question was not fixed in time by the evidence.  It could have occurred at any time in the period between the commencement of work on the work for the dole scheme and August 2006.

[22]  The evidence was prejudicial in that it concerned a history of inappropriate non-consensual touching which the jury could reason made it more likely that the appellant did engage in the conduct complained of by the complainant.   It was also open to the jury to conclude from the banter about rape that the appellant did not consider non-consensual sex abhorrent or even unacceptable.

[23]  There was no objection to the admission of this evidence and counsel for the respondent submitted that the defence may have viewed the evidence of sexual banter as relevant as tending to show that the sexual banter engaged in between the appellant and the complainant on the afternoon of 27 August was merely a continuation of similar past conduct.  The record did not contain the transcript of counsel’s addresses on the trial but the appellant’s counsel did not cross-examine in respect of any of this evidence.  It is thus unlikely that the failure to object resulted from a choice based on a perceived forensic advantage.  And it is difficult to see how the admission of evidence of inappropriate touching could have served any sensible forensic purpose for the defence.

[24]  It was submitted that from the prosecution perspective the evidence of workplace banter may have explained why the complainant did not depart after the sexual banter which occurred whilst the appellant’s friends were in his room prior to the subject incident. 

[25]  The complainant described this banter as containing ribald comments by the appellant about prospective sexual conduct between him and the complainant later that evening.  During the course of it the complainant said that the appellant asked his friends if they wanted to “smoke” the complainant.  They enquired about the cost.  The complainant said, “You couldn’t afford it mate” and the appellant then pronounced, “. . . it’ll be a knock out special”. The detailed content of this conversation had no probative or evidentiary value unless it was to be contended by the prosecution that the appellant’s words should be regarded as evidencing of his intentions.  Indeed, it was submitted by counsel for the respondent that the oral exchange was capable of being viewed in that light.  It does not appear, however, that the prosecution took that approach to the evidence on the trial.  The summing-up makes no mention of it and it is improbable, in my view, that the appellant would have broadcast his intention to rape the complainant to her and the two others present.  The evidence, however, served to portray the appellant as a person whose attitude to women and sexual conduct was lacking in sensitivity and scruples.

[26]  The possible prejudicial effect of this evidence was not reduced by the following exchange in cross-examination:

“And this time you say in which he made the comment, “It would be a knock out special”, that’s during the time of the rugby league, is it?--  It might have been.

After the consumption of liquor and cannabis?--  Yes, but this is while he’s saying to his mates like implying that – that he was going to knock me out and when I was passed out – that’s a knock out special, when you knock the person out and then everybody has their way with them.  That’s what he was talking about.”

[27]  In her non-responsive answer the complainant gave non-expert opinion evidence on the meaning of words used by the appellant.  Her explanation, on the most benign view of it, portrayed the appellant as a person prepared to joke about the rendering of a woman unconscious to facilitate non-consensual sex.  On another view of the complainant’s explanation, the appellant was stating how he intended to deal with the complainant later in the evening.

[28]  A trial judge in some circumstances may conclude that the giving of a specific direction in relation to evidence wrongly admitted may be counter-productive in focussing attention on evidence which has achieved no particular prominence.  It is not possible to say whether that was a consideration here; there was no request for a redirection and thus no argument in relation to the point.  In my view, however, the evidence about improper touching and the workplace banter, as well as being inadmissible, was prejudicial to the appellant for the reasons already advanced.  The jury should have been directed to disregard it.  Even if the evidence of the banter on 27 August was admissible, which I doubt, its prejudicial effect outweighed any marginal evidentiary value it may have had and it should not have been admitted.

Consideration of Ground 4

[29]  It is convenient to consider Ground 4 together with the respondent’s contention that, in the event that the summing-up was shown to be wrong in law, the appeal should be dismissed on the ground that, “no substantial miscarriage of justice has actually occurred” within the meaning of s 668E(1A) of the Criminal Code Act 1899 (Qld).

[30]  In undertaking the task required by s 668E(1A), it was said in the reasons of the court in Weiss v The Queen[9]:

“[39] Three fundamental propositions must not be obscured. First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt.”

[31]  By way of further explanation of the appellate court’s role it was said:

“The statutory task and the proviso

[41] That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury 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 [64] 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 [65], the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself.

[42] It is neither right nor useful to attempt to lay down absolute rules or singular tests that are to be applied by an appellate court where it examines the record for itself, beyond the three fundamental propositions mentioned earlier. (The appellate court must itself decide whether a substantial miscarriage of justice has actually occurred; the task is an objective task not materially different from other appellate tasks; the standard of proof is the criminal standard.) It is not right to attempt to formulate other rules or tests in so far as they distract attention from the statutory test. It is not useful to attempt that task because to do so would likely fail to take proper account of the very wide diversity of circumstances in which the proviso falls for consideration.”[10]

[32]  The appellant’s submission that the prosecution’s case was not strong was not supported by any references to the evidence. There were however some inconsistencies in the complainant’s evidence and some matters which I am about to discuss which significantly eroded the strength of the prosecution case.

[33]  In cross-examination the complainant said that she had only consumed three glasses of wine and “a tallie of beer” before the offence was committed.  It emerged in cross-examination that she had also smoked two cones of cannabis.

[34]  The policewoman who drove the complainant to the police station recalled being told by the complainant that she had consumed about two litres of wine.  She made a note of that in her note book.  This witness gave evidence of having been told by the complainant that, “. . . she had fallen asleep and she’d awoken and Graham was doing it.”  Asked to clarify what that meant she said she would have asked her what she meant by that but couldn’t now remember what she asked or the response.  Her evidence at the committal hearing was put to her.  It was to the effect that the complainant had said that there had been penile penetration.  That evidence however was not adopted by the witness or otherwise put in evidence on the trial.

[35]  The complainant alleged that the female police officers who drove her to the police station told her that she “deserved what she got”.  That was vigorously denied by the female police officer who gave evidence.

[36]  The police officer who took the first formal statement given by the complainant gave evidence that the complainant did not complain about any conduct on the part of the police officers who had brought her to the police station.  He recorded that the complainant said that she “felt something inside her vagina.  May have been a beer can.”  His notes did not contain any reference to the insertion of a finger or fingers and he said, in cross-examination, that he would have made a note of such an allegation had it been made.

[37]  The examining medical practitioner gave evidence of having been informed by the complainant that she awoke to find the appellant “squatting under the blanket on the sofa” with a beer can in his hand “attempting to insert the can into her vagina . . .” She was not sure if the beer can had penetrated her vulva but was sure that he penetrated her vagina with his finger. Preliminary tests showed the presence of cannabis in the complainant’s bloodstream.  The medical practitioner said that this was consistent with the history the complainant had given him.

[38]  Although there were substantial inconsistencies in the evidence of the complainant about what she observed or felt on awakening on the sofa, the central core of her allegation was consistent throughout.  That was that she awoke feeling strong pressure in her vagina with her legs spread, her pants partly pulled down, to find the appellant on the sofa under the blanket with a beer can in his hand.  The complainant’s account receives support from her departure from the appellant’s room at night in the rain and from her virtually immediate complaint. 

[39]  Other evidence though had the potential to greatly weaken the complainant’s credibility.  The evidence of the policewomen telling her that she “deserved what she got” seems rather improbable, particularly as the complainant made no complaint about this behaviour to the police officer who interviewed her at the police station.  It is improbable also that the policewoman would have made a note in her note book of having been told that the complainant had consumed about two litres of wine if that had not been said.  The evidence about the appellant having the beer can in his hand “whilst he was doing it” and the other inconsistencies referred to above are more readily explicable.  They may have arisen through misunderstandings or they may have resulted from the complainant’s speculation or conjecture as to what caused the singularly strong sensation in her vagina which woke her up. 

[40]  The complainant’s evidence concerning the sexual banter in the workplace and on 27 August may be thought to be far from compelling.

[41]  But to my mind, the most concerning aspect of the evidence which bears on the complainant’s credibility, is the evidence of her extensive criminal record.  It is littered with convictions for offences involving dishonesty, including; breaking and entering, shoplifting, receiving property obtained by a crime, stealing and unlawful use of a motor vehicle.  As well as having consumed alcohol on the night of 27 August, she had smoked cannabis.  It was thus apparent that the complainant was a person whose evidence had to be approached with great caution.

[42]  The summing-up relevant to the assessment of the complainant’s credibility is as follows:

“Now, beyond her immediate circumstances she was examined about her past criminal history, and I do want to give you some directions about that. One way to attack the evidence of any witness is to attack their general credit. One of the more common ways of doing that, if the witness happens to have a criminal history, is to place the witness’ criminal history before the court and that was done in this case. You may take into account when considering the complainant’s evidence and the weight you are prepared to give to her evidence that she does have a criminal history which includes offences of dishonesty and that in addition she has a past history of drug use. Those are both matters that can affect her character and the weight that you give to her evidence.

Of course what weight you do give to her – to these matters is in this case entirely for you. The fact that someone has previous convictions or is of poor character does not mean their evidence should be rejected out of hand. We are all entitled to justice and to be treated fairly, whatever our past. In deciding whether you are prepared to accept the complainant’s evidence beyond reasonable doubt you should look at her evidence carefully, considering any evidence and weight her evidence in the context of all of the evidence in the case, including the evidence that bears on her general character.”

[43]  In these circumstances, it seems to me that it was highly desirable for the primary judge to stress that acceptance of the complainant’s evidence was critical to the prosecution case and to give more specific directions in relation to that evidence.  In particular, it would have been desirable for the primary judge to remind the jury that the complainant’s lengthy criminal history showed her to be a dishonest person whose evidence, where not supported by other evidence, needed to be subjected to careful scrutiny. Because of the evidence of the complainant’s character it was desirable also for the judge to make specific reference to the evidence of the female police officer which conflicted with the complainant’s evidence.  To my mind, the above passage from the summing-up tended to detract from the significance of the matters which cast doubt on the complainant’s evidence.

[44]  Counsel for the respondent submitted that if the primary judge had summed-up in this way he would also have had to refer to the medical evidence which was supportive of the prosecution case. That evidence, although consistent with the complainant’s evidence, was far from compelling evidence of the insertion of an object or objects into the complainant’s vagina.

[45]  The evidence about the consumption of alcohol and the use of cannabis was significant.  The thrust of the complainant’s evidence was that she did not observe any actions of the appellant from which she could deduce that he had penetrated her digitally or with an object, such as a beer can.  Her conclusions in that regard were based on the strong sensation she had described and her observation of the presence of the appellant on the sofa with a beer can in his hand.  She had experienced strong but different sensations in her genital region earlier that night.  Against this background it is not beyond the realms of possibility that the sensations experienced by the complainant were not caused by penetration of her vulva or vagina by a beer can or any other object.  Sexual molestation of a female by a male with a beer can, in the circumstances described, may be thought to be an unusual way of obtaining sexual gratification.  If the complainant had been digitally penetrated, which she considered to be another possibility, it would have been awkward for the appellant to have gone about this, particularly the preliminary steps of positioning the complainant’s legs and lowering her shorts, whilst holding a beer can.

[46]  Having regard to the prejudicial nature of the wrongly admitted evidence, which was not addressed by appropriate directions, viewed in light of the other matters discussed above, I am unable to be satisfied that the accused was proved guilty beyond reasonable doubt.  For the same reasons I have concluded that there was a “miscarriage of justice” within the meaning of s 668E(1) of the Criminal Code Act 1899 (Qld).  Accordingly, I would allow the appeal, order that the verdict be set aside and order a re-trial.

[47]  FRASER JA:  I agree with the reasons of Muir JA and with the orders proposed by His Honour.