R v Draper[2015] QCA 66

SUPREME COURT OF QUEENSLAND

[1] MARGARET McMURDO P:  The appellant, Lawrence Draper, has appealed against his jury conviction for sexual assault on five grounds.  I agree with Gotterson JA’s reasons for concluding that his grounds 1 to 4 are not made out.  I have, however, reached a different conclusion from his Honour on ground 5.  I would allow the appeal against conviction on ground 5, quash the conviction for sexual assault and order a re‑trial.  These are my reasons.

[2] Particulars of the sexual assault were neither asked for by the defence at trial nor provided by the prosecution.  But it is clear from the judge’s directions to the jury, the progress of the case and his Honour’s sentencing remarks, that the trial was conducted on the basis that the alleged sexual assault was the appellant’s touching of the complainant’s breast, either with his hand or his mouth, in the way the complainant described in evidence.[1]  In his sentencing reasons, the judge did not make clear whether he was sentencing for sexual assault on the basis that the appellant touched the complainant’s breast with his hand, his mouth or both.[2]

[3] The complainant’s evidence in chief was that the appellant told her to pull up her underwear and then touched her breasts (inferentially with his hand).  She thought he also licked her breasts.[3]  In cross-examination she agreed first that he licked and/or kissed her right breast[4] and later that he lifted up her top, removed part of her bra and licked her right breast.[5]  The appellant when interviewed by police denied any intimate contact with the complainant.  He did not give evidence at trial but in cross-examination his counsel put to the complainant that she took the appellant’s hand, placed it on her breast and then on her groin.[6]

[4] The judge’s directions left the count of sexual assault for the jury’s consideration on the basis that they could convict either if the appellant touched the complainant’s breast with his hand or with his mouth or both.[7]  Unfortunately, neither counsel nor the judge were alert to the fact that this imprecision gave rise to dangerous uncertainty.  To avoid the possibility of resulting unfairness, the High Court has long recognised that the prosecution must identify the precise set of facts said to amount to the commission of each charged offence: Johnson v Miller.[8]  More recently, the High Court expressed concern in S v The Queen[9] that, in the absence of the particularisation of the precise act or acts constituting a charged offence, some jurors may convict on the basis of one act, and others on the basis of another act so that there is no unanimity in their verdict.[10]  This Court in R v Morrow and Flynn[11] also highlighted one difficulty arising when charges are framed and particularised with a latent ambiguity as being that individual jurors might identify different occasions as constituting the relevant offence so that there is no unanimity in relation to their verdict.[12]  A further difficulty arising in this case from the flawed particularisation (although not relied on in this appeal) is that it is impossible to know whether the judge sentenced the appellant on the basis that he touched the complainant’s breast with his hand, or that he licked or kissed her breast, or both.[13]  It is true that the appellant’s counsel at trial did not raise the question of duplicity or inadequate particularisation but that is not fatal to the appellant’s success in this appeal if it has caused a miscarriage of justice.[14]

[5] There may be cases where duplicitous particularisation of a count does not lead to unfairness.[15] But there is a real possibility in this case that some jurors were satisfied beyond reasonable doubt that the appellant touched the complainant on the breast with his hand, whilst others were not satisfied beyond reasonable doubt of that, but satisfied beyond reasonable doubt that he licked or kissed her breast.

[6] I agree with Gotterson JA’s reasons for rejecting the respondent’s contention that the jury’s verdict could not have differed even if the count had been particularised solely as to the appellant’s touching of the complainant’s breast.[16]

[7] And nor can I accept the respondent’s contention that this Court’s decision in R v Chong[17] has the effect that particularisation of a charge in the manner which occurred in the present case was entirely proper.  In Chong, Holmes JA specifically stated that she had not come to a firm view on the question of particulars and allowed the appeal on the basis that the trial judge misdirected the jury on an unrelated basis.[18]  Fryberg J considered that the prosecution’s departure from its particulars warranted the allowing of the appeal[19] but also agreed with Holmes JA that the appeal should be allowed because of the judicial misdirection.[20]  North J agreed with Holmes JA on the misdirection ground[21] and found it unnecessary to address the ground concerning the prosecution’s departure from the particulars.[22]

[8] As to the application in this case of the proviso in s 668E(1A) Criminal Code 1889 (Qld), after reviewing the whole of the admissible evidence at trial, and in light of the jury’s verdict of acquittal on the offence of rape, and without hearing and seeing the complainant give her evidence through an interpreter, I am not persuaded beyond reasonable doubt of the appellant’s guilt of sexual assault, either as to a touching with his hand or licking or kissing of her breast, or both.[23]  That is not to say that, with the provision of precise particulars, a properly instructed jury could not be satisfied of his guilt of sexual assault.

[9] I would order that the appeal be allowed, the conviction for sexual assault set aside and a re-trial ordered.

[10] GOTTERSON JA:  At a trial over five days in the District Court at Bowen, the appellant, Lawrence Anthony Draper, was convicted on 2 June 2014 of unlawful and indecent assault, an offence against s 352(1)(a) of the Criminal Code (Qld) (Count 1).  He was acquitted of the other count on the indictment, that of rape (Count 2).  Both offences were alleged to have been committed on the evening of 22 August 2013 against the same complainant.  The appellant was sentenced on the day that he was convicted to 12 months’ imprisonment wholly suspended for an operational period of two years.

[11] On 22 June 2014 the appellant filed a notice of appeal against conviction.  At the hearing of the appeal the appellant was given leave to file an amended notice of appeal which set out the grounds of appeal on which the appeal was argued.

The circumstances of the alleged offending

[12] The complainant is a South Korean national in her very early twenties who gave evidence via an interpreter.  In August 2013 she was in Australia on a working visa and was living at Bowen where she worked as a tomato picker.[24]  The appellant is an Australian national who, at the time, was 57 years old.[25]

[13] The Crown alleged that the complainant was picked up by the appellant in his Toyota Hilux from a service station.  She had walked there between 5 pm and 6 pm to buy some snacks.[26]  The complainant and the appellant had met casually twice before.  On one of those occasions he had mentioned to her that he knew about the availability of jobs at packing sheds.[27]  They exchanged mobile telephone numbers.[28]

[14] The pair travelled to various parts of Bowen in the truck before driving up to a viewing area on Bowen Hill.[29]  After about 10 minutes they left.  They travelled on a “rough winding road”.  It was not lit and there were no other people around.[30]  After about 10 minutes, the appellant stopped the truck.[31]

[15] The complainant stated in evidence that the appellant then touched her thigh and asked her whether she could give him a kiss.[32]  She declined and made a corresponding gesture with her hands.[33]  The appellant took off his seat belt, moved closer to her and kissed her on the lips.[34]  The complainant resisted and cried.[35]

[16] The complainant testified that the appellant then threatened to hit her and grabbed her by the back of her hair with one of his hands.[36]  The appellant used his other hand to activate the lever of the front passenger seat in which the complainant was sitting.  The appellant lowered the back of the seat to a point where the complainant felt as if she “was lying down”.[37]

[17] According to the complainant’s evidence, the appellant asked her to show him her breasts.  He told her to pull up her shirt.  She did so because she felt she had no other choice.[38]  He then asked her “to pull up her underwear”.  She raised her bra.[39]  She testified that the appellant then touched “her breasts”.  In context, this clearly meant that he touched them with his hand.  She also said, “I think also he licked my breasts.”[40]  In examination-in-chief she said she did not remember which breast was licked.[41]  Later, she said in cross-examination that she was licked on the right breast.[42]

[18] The complainant gave evidence that the appellant touched her “genital area” and “used two or three fingers” to go insider her vagina “a little bit” and moved his fingers.  She was wearing shorts and underpants at the time.  The appellant had put his hand under her underpants.[43]  The complainant said that she was crying.  She estimated that the appellant’s actions continued for five to seven minutes until he pulled his fingers out and said that he would take her home.[44]

[19] The complainant was observed to return to the house in Bowen where she was living at about 7.40pm that evening.  A resident at the house who made that observation gave evidence that the complainant was crying and that she gave an account of events to him.  At his suggestion, they went to the police station.[45]

The grounds of appeal

[20] The appellant relies on the following grounds of appeal:

“1.The learned trial judge erred either:

1.1 in permitting the prosecution to make evidential use of propositions put to the complainant during cross-examination;

or

1.2 in failing to give a “Zoneff” direction to warn the jury against the danger of misusing such evidence as an indication that the appellant lied in his interview with police.

2.A substantial miscarriage of justice arose from the learned trial judge’s failure to discharge the jury when the DNA evidence of which they were already aware was excluded.

3.The verdict of guilty on count 1 was unreasonable in that it was inconsistent with the jury’s acquittal on count 2.

4.The verdict of guilty on count 1 was unreasonable and cannot be supported with regard to the evidence.

5.Count 1 was duplicitous and in consequence caused a substantial miscarriage of justice.”

[21] Each of these grounds was addressed in the above order in written and in oral submissions.  It is convenient to consider them in the same order.

Ground 1

[22] The appellant did not testify at trial.  He was interviewed by Detective Sergeant Inmon at the Bowen police station on the evening of 26 August 2013.  The interview was recorded and the recordings of it were tendered in the prosecution case without objection.[46]  They were viewed by the jury.[47]

[23] The appellant acknowledged that he and the complainant travelled to Bowen Hill in his vehicle on the evening in question.  In the course of the interview, he denied that he and the complainant had ever shown any mutual affection,[48] or that any kissing or intimate touching took place.[49]  He was “absolutely astounded and shocked” by the content of the complaint against him.[50]

[24] Counsel for the appellant at trial put to the complainant in cross-examination that the appellant did not ask her to kiss him, or pull back her hair, or lever the car seat back.[51]  He also put that the appellant did not ask her to lift her shirt and bra and did not lick her breast.[52]  Specifically, it was put to the complainant that the appellant did not touch her genital area or penetrate her vagina with his fingers.[53]  The complainant rejected what was put to her.

[25] Towards the end of the cross-examination, defence counsel questioned the complainant as follows:

“MR COLLINS: Now, what I’m suggesting to you is this: is that he drove you back to your home. Do you agree with that?

INTERPRETER: Yes.

MR COLLINS: Okay. What I’m suggesting is this: is that, when you arrived and the car stopped - - -

INTERPRETER: Yes.

MR COLLINS: - - - the man put his hand up and said – waved goodbye like this, as he was sitting in the drivers (sic) seat and you were sitting beside him.

INTERPRETER: I don’t know.

MR COLLINS: You took hold of his hand. Do you agree with that or not?

INTERPRETER: I don’t agree.

MR COLLINS: And you took his hand and you placed it on your breast, up underneath your shirt and then you quickly took his hand down towards the area of your groin.

INTERPRETER: I don’t agree.

MR COLLINS: Okay. Then you got out of the car and you said, “Not tonight. Too tired. I’ll ring you tomorrow”.

INTERPRETER: Yes.

MR COLLINS: But you then went into the house.

INTERPRETER: Yes.”[54]

[26] It may be noted that the appellant had not told Detective Sergeant Inmon in the interview of an instance in which the complainant took his hand and placed it on her breast and then moved it towards her groin area before alighting the vehicle.  It had, however, been suggested to him by the detective that the complainant had said “that you were told by her to stop and that she wanted to go home ‘cause she was, she made up a story about being tired and said something about tomorrow, tomorrow and that you drove her home.”[55]  This, the appellant denied apart from the fact that he drove the complainant home.[56]

[27] Prior to addresses, the direction that ought to be given to the jury to accommodate the circumstance that what had been put to the complainant about taking the appellant’s hand and putting it first on her breast and then towards her groin area had not been disclosed by the appellant in his police interview, was the subject of submissions.  The learned trial judge did not permit the prosecutor to use the circumstance as a basis for submitting to the jury that the appellant had lied to police out of a consciousness of guilt.

[28] His Honour did, however, permit the prosecution to make evidential use of what was put to the appellant on the basis that it must have reflected the appellant’s instructions for the trial.  Relevantly, his Honour instructed the jury in these terms:

“In this case, there’s another matter for you (to) consider, when you consider what weight you give to those answers in which he denied the allegations, because you need to consider not only that they were not tested by cross-examination, but also that they appear to be inconsistent with the case advanced for the accused in the trial before you. I should explain what I mean by that; you’ll recall that it was put to the complainant by counsel for the accused that shortly before they parted on the relevant night, the accused made a gesture with his hand as if waving good night, and the complainant thereupon took hold of his hand and placed it first on her breast, and second in the area of the vagina and said words to the effect, “Not tonight. Too tired. Tomorrow.”

You will remember that I told you that questions constitute evidence only to the extent that a witness accepts the truth of the suggestion, but when counsel puts a question in a positive form like that, he’s performing an important part of his duty in a case like this. It is his duty to put (to) the complainant what his instructions are, so we can infer from the fact that he put those propositions to the complainant that that is what the accused told him about what happened.

It will be immediately obvious to you that that’s inconsistent, and significantly inconsistent, with the account that he gave to the police officers. Well, what then can you do with that evidence? If you draw an inference that Mr Collins said that because that’s what the accused told him, and there doesn’t seem to be any other explanation for it, then that might affect the reliability of what was said by the accused to the police officers when he said those things denying that the allegations of the complainant were true and denying that there was any sexual conduct – contact between them at all.

You’ve been reminded and, indeed, I’ll have to remind you again on Monday, that he stated definitely on more than one occasion in the interview that nothing of a sexual nature occurred, and now it seems that he says there was some conduct of a sexual nature, but it was initiated by the complainant and, accordingly, of course, couldn’t constitute an offence by him because it was contact that she not only consented to but initiated.

Well, that’s one way of looking at it, but I caution you to think carefully about the matter. Might the variation be explained by feelings of shame or embarrassment rather than a wish to tell the police something inaccurate about the evening’s events? Might the accused have just been a bit ashamed of what he’d been doing that evening and not willing to tell the police everything about it, even in the context of the serious allegations that were being made to him? If you felt an explanation like that might account for the difference, then the difference doesn’t have much significance at all, does it.

As I say, it’s entirely a matter for you what weight you give to those exculpatory portions of the record of interview, but the variance between them and the case advanced on the accused – on behalf of the accused here is a matter that’s worth your consideration when you’re looking at that aspect of the matter.”[57]

[29] The first limb to this ground of appeal is that the direction was flawed in that it countenanced the use in assessing the reliability of the account given by the appellant to the police, of what was put in cross-examination to the complainant by his counsel but was denied by her.  Citing the observations of Pullin JA in Beins v The State of Western Australia [No 2][58] that “[i]t is uncontroversial that counsel’s questions do not amount to evidence, and cannot be converted into evidence by a process of inference”, counsel for the appellant submitted that it is a “bedrock rule” that propositions put to a witness in cross-examination but denied are not evidence.

[30] The appellant’s submission maintains that this rule allows of one exception, that established in R v Robinson,[59] to which the learned trial judge had been referred by the prosecutor.[60]  The submission propounds that this exception is properly understood as founded upon the consequence that where the rule in Browne v Dunn[61] is breached and evidence of facts not put is subsequently given for the party whose counsel was responsible for the breach, then that party may be exposed to comment that the evidence is not in accordance with instructions to counsel and should be disbelieved as a recent invention.[62]  Therefore, it is argued, the exception depends for its application upon the party testifying to facts which are inconsistent with those put to a witness on behalf of that party.  The submission arrives at the conclusion that because the appellant did not testify, what was put to the complainant as conduct on her part but denied by her, could not be used for any evidential purpose.[63]

[31] In Robinson, the sixth ground of appeal was that it was impermissible for the trial judge to suggest to the jury that they might be assisted in evaluating the evidence by comparing certain questions asked by counsel for the appellant, of police officers, with evidence of the appellant which was inconsistent with the content of the question.  Dunn J (with whom Wanstall ACJ and Douglas J agreed) observed:

“It is by no means uncommon, in the final addresses of counsel and in summing-up, to hear such comparisons made – on the footing that questions reflect instructions, and that the giving of evidence inconsistent with the questions may support the inference that a witness’s account of events is a fluctuating one, and so should be regarded with reserve, or disbelieved.

…

[C]ross-examining counsel is concerned with primary facts.  His instructions are as to primary facts, and it is his obligation – a strict obligation – that, if he ‘puts’ occurrences to witnesses, he ‘put’ them in accordance with his instructions.  This being so, the instructions may be inferred from the questions.  If there is a discrepancy in a significant particular (I do not mean a minor or explicable discrepancy, for whilst perfection in communication between client and legal adviser is aimed at, it is not always achieved) between questions based on instructions as inferred and the evidence of the person from whom the instructions must be taken to have come, it seems to me to be quite permissable for a judge to ask the jury to have regard to the discrepancy in evaluating the evidence.

The truth is, I think, that whilst in a strict sense questions are not evidence, questions asked (and indeed questions unasked) form part of the conduct of his client’s case by counsel.  The conduct of the case is something from which the jury may be asked to draw inferences, so long as due regard is had to the requirement of fairness and the possibility of human error (especially in relation to peripheral matters).  I am therefore of the opinion that Ground 6 is not made out. …”[64]

[32] There are a number of aspects to these observations which are significant for present purposes.  Firstly, a distinction is drawn between primary facts which are put to a witness by way of a question and the quite different fact observed by the jury that the question has been put.  The decision in Robinson permits the jury to have regard to that latter fact for the purpose of drawing an inference from it as to instructions given by the person, on which an evaluation of evidence might be based.  Secondly, Dunn J spoke of discrepancy between what is put and “the evidence of a person”.  That expression is apt to include not only testimony of the person given during the trial but also recorded statements made by the person which are duly admitted at trial.  Thirdly, his Honour did not link his observations to the rule in Browne v Dunn or the consequences of a breach of it.  Each of these aspects provides a point of reference for evaluation of the appellant’s submission.

[33] As to the first aspect, the explanation of the distinction made by Dunn J in Robinson between types of facts and the use to which the fact of putting a question may be put, has been approved in other Australian jurisdictions.  Examples are Lander v The Queen[65] in South Australia and Spiteri v Visyboard Pty Ltd[66] in Victoria.  Moreover, the distinction was implicitly recognised by Pullin JA in Beins.  His Honour qualified his statement on which the appellant relies here by saying “(I put aside circumstances in which implicit admissions may arise out of questions put by a party’s own counsel)”.  In none of these instances has the court suggested that for evaluation of evidence, use of what is put to a witness on behalf of a party is limited to circumstances where the party concerned testifies.

[34] The decision of this Court in R v R,[67] to which the learned trial judge was also referred[68] is relevant to the second of these aspects, to which I now turn.  The offender in that case did not give evidence.  In cross-examination of the 15-year-old complainant, it was put to her that she had assisted in placing the offender’s penis in her vagina and had consented to sexual intercourse.  Yet in a tape recorded interview with police which was received in evidence, the offender had denied any sexual intercourse with the complainant.  The jury were directed on the footing that the denial was a lie.  A basis of challenge to the direction was an absence of evidence that established the lie.  The challenge was rejected.  Their Honours were of the opinion that, on the defence case as put at trial, the denial was a lie.[69]

[35] The issue in R was whether use could be made of the evidence of what the offender had said out of court in order to establish the lie.  Although that issue had not arisen in Robinson and the Court did not refer to it, the significance of the decision in R for present purposes lies in its ready use of evidence of an out of court statement for a forensic purpose associated with credit.

[36] In this context, I refer also to the decision of this Court in R v S[70] in which reference was made to Robinson.  In R v S, defence counsel had put to the complainant that the specific instance of indecent dealing to which she had testified, had not happened.  The appellant did not testify.  The trial judge directed the jury to the effect that in putting, rather than merely suggesting, that those incidents had not taken place, defence counsel raised an expectation that the appellant would be called to deny them and that his failure to do so on oath might be viewed adversely by the jury.  All members of the Court considered that the direction was erroneous.[71]  Their Honours were rightly concerned to denounce as tending towards a reversal of the onus of proof, the implication in the direction that use of the word “put” in cross-examination gives rise to an obligation to call an accused to testify in a criminal trial and that a failure to do so might ground an inference damaging to the accused or counsel.

[37] Their Honours in R v S did not doubt Robinson or suggest that it applies only in a circumstance where the appellant testifies.  They were not required to consider the situation where there was evidence of out of court statements of the appellant which were inconsistent with questions put.

[38] Apart from absence of authority for the proposition that Robinson is limited to the circumstance where the party has testified, there is no reason in principle for such a limitation, in my view.  I accept the submission for the respondent that no distinction can rationally be made between evidence of a recorded out of court statement received at trial and evidence given at trial for the purpose of contrasting it with what has been put to a witness.  Particularly is this so where the content of the recorded interview is known to the cross-examiner who puts a version to the witness which differs from his client’s version as given in the interview.

[39] As to the third aspect, I consider that the rule in Browne v Dunn does not, by analogy, support the suggested limitation.  To the contrary, it supports the view that what is put in cross-examination of a complainant does have evidential value in that it may be contrasted with evidence of what the accused has already told the police for the purpose of assessing the credibility of the latter, just as, under the rule in Browne v Dunn, a failure to put to a complainant a version of events to which an accused subsequently testifies, may allow the testimony to be criticised as recent invention.

[40] For these reasons, I would reject the appellant’s submission.  I would also observe that, as Dunn J had urged be done, the learned trial judge gave directions with fairness in mind.  He cautioned the jury to think carefully about the matter.  He canvassed how the inconsistencies might otherwise be explained.  He told them that if another explanation appealed to them, then the inconsistencies might not have much significance for them at all.  In this way, the directions given were appropriately fair.

[41] The second limb to this ground of appeal is that if the learned trial judge correctly directed the jury as to the use to which the questions put to the complainant might be used by them, he failed to direct them adequately as to how they could use them.  Towards the end of the summing up, the learned trial judge spoke to the jury about credibility.  In the course of so doing, he said:

“Does the fact that the accused gave an explanation to the police which was at least, in part, (un)true damage his credibility and cause you to reject exculpatory parts of his record of interview, or do you think that that is explained by other reasons?”[72]

This, the appellant submits, gave rise to a real risk that the jury would conclude that the appellant had lied and would use that lie to infer guilt on his part.  In the circumstances, a Zoneff direction was required.[73]

[42] A Zoneff direction is required when there is a “risk of a misunderstanding about the significance of possible lies” in that the jury might reason impermissibly from a conclusion that the accused has lied to a conclusion of guilt.[74]  A Zoneff direction, in terms, warns the jury against reasoning in that fashion.  At [23], the majority (Gleeson CJ, Gaudron, Gummow and Callinan JJ) formulated a direction that might be given to cater for that circumstance and at [24] noted that it might be adapted to circumstances where there was such a risk even though the prosecutor had not suggested that the accused lied out of a consciousness of guilt.

[43] Subsequently, in Dhanoha v The Queen,[75] Gleeson CJ and Hayne J observed[76] that a Zoneff direction was not necessary every time it is suggested in cross-examination or argument that something an accused has said either in or out of court, is untrue or otherwise reflects adversely on his or her credibility.  Their Honours noted that the court in Zoneff said that it was an unusual case and that the direction there proposed was appropriate where there is a risk of misunderstanding about the significance of possible lies.  McHugh and Gummow JJ made observations to similar effect.[77]

[44] Decisions of this Court subsequent to Dhanoha illustrate a range of different circumstances in which it has been held that a Zoneff direction was not required.[78]  They include absence of a basis for concluding that there was a risk of a misunderstanding by the jury about the significance of possible lies,[79] and conduct of counsel at trial in not requesting such a direction.[80]

[45] In the present case, the learned primary judge did not use the word “lies” or a synonym for it in reference to the exculpatory statements by the appellant in the record of interview.  Neither counsel addressed in such terms.  In these circumstances, I am unpersuaded that there was a risk that the jury may have understood that they could reason from the inconsistencies between those statements and what was put to the complainant, that the appellant had lied and that he was therefore guilty.  Accordingly, I am unpersuaded that a Zoneff direction was required in addition to the directions that were given.

[46] In any event, a submission for the appellant that the failure to give a Zoneff direction occasioned a substantial miscarriage of justice encounters the significant difficulty that defence counsel did not ask for such a direction and, in fact, requested that “lies” not be raised in directions.[81]  The making of this request bespeaks a forensic decision on the part of defence counsel not to seek a Zoneff direction.[82]

[47] For these reasons, the second limb to this ground of appeal cannot succeed.

Ground 2

[48] The prosecution opened its case on the basis that DNA evidence linking the appellant to a swab taken from the complainant’s bra would be led.  On the third day of the trial, the evidence was excluded in consequence of the prosecution’s failure to prove the continuity of the exhibits from which the DNA was extracted.[83]  Defence counsel did not apply for the jury to be discharged.  This ground of appeal is that a substantial miscarriage of justice occurred because the learned trial judge did not then discharge the jury.

[49] Prior to addresses, defence counsel urged his Honour to give a very strong direction to the jury to put what was said about this DNA evidence out of their minds.  The following direction was given to the jury on the topic:

“Now, the Crown Prosecutor said something to you about DNA evidence when she opened the case on Tuesday and no doubt you’ve all seen enough television shows to know that DNA evidence is something that’s flavour of the month and very important in lots and lots of criminal prosecutions. But as matters turned out here, there isn’t any. There isn’t any DNA evidence at all. The Crown failed to prove the result of any DNA test and, in that circumstance, there’s simply no evidence of that type. It’s critically important that you put aside what the Crown Prosecutor said to you in the opening of the case about the matter of DNA evidence and you reach a verdict simply on the evidence that you have here.

You should not speculate about why the Crown might have failed in its attempt to prove that matter. All that matters to us now is that there isn’t any evidence of that sort and what the Crown Prosecutor said to you when she opened the case can’t replace evidence that’s otherwise absent. I can’t emphasise too strongly the importance of this direction. As it turns out, DNA evidence just has no part to play in this case and what was said about it doesn’t warrant a moment’s consideration by you. You shouldn’t waste time speculating as to why things are as they are.”[84]

[50] It is to be assumed that the jury acted in accordance with this direction.[85]  Notwithstanding, the appellant submits that such an assumption here is misplaced because the jury must have ignored the direction.  That is because they had been told in the opening that the likelihood of a linkage of this DNA with the appellant was extremely high and also because they may well have regarded the exclusion of the DNA evidence as “technical”.  To my mind, this submission is not a compelling one.  It overlooks the force of the language used in the direction and it appears to reason impermissibly that because the jury convicted on Count 1, they must have taken that evidence into account in deciding to convict.

[51] The appellant concedes that the failure to apply for a mistrial when the DNA evidence was excluded was a rational tactical decision on the part of defence counsel.  The concession is appropriate.  A discharge of the jury would have allowed the prosecution opportunities to appeal the exclusion ruling or to secure sufficient continuity evidence before a retrial.  The forensic decision made in this instance effectively precludes argument that there was a substantial miscarriage of justice as alleged.  This ground of appeal must fail.

Ground 3

[52] This ground of appeal arises from the conviction of the appellant on Count 1 and his acquittal on Count 2.  The contrasting verdicts are, it is submitted, an affront to logic and common sense in terms of the test formulated in MacKenzie v The Queen.[86]  The appellant’s contention is that they are so because they arise from the one source of evidence.  The jury must have accepted the evidence from that source on Count 1 but rejected evidence from the same source on Count 2.  To have done so is logically inexplicable.

[53] Underlying the characterisation of the jury’s verdicts as illogical is the hypothesis that they must have accepted the complainant’s evidence on the one count but rejected it on the other.  This hypothesis overlooks that the body of evidence before the jury was not necessarily limited to that of the complainant in each case, and that the quality of the evidence varied as between the counts.

[54] For Count 1, the complainant gave unequivocal evidence that the appellant touched her breasts.  This evidence was consistent with the evidence of the resident who observed her return to the house.  The complainant told him that the appellant “started touching everywhere on her body”.[87]  It was not specifically put to the complainant in cross-examination that the appellant did not touch her breasts with his hand.  By contrast, in evidence-in-chief, the complainant described the degree of penetration of her vagina as “a little bit”.  She did not complain to the resident of being touched inside her body.  Further, a vulval swab taken from the complainant did not reveal the presence of the DNA of any person other than the complainant herself.[88]

[55] These differences are significant.  To my mind, they reveal a logical basis on which the jury could have been satisfied beyond reasonable doubt of indecent assault by touching but not satisfied to that standard of penetration necessary to sustain a rape conviction.  On that basis alone, this ground of appeal cannot succeed.

[56] There is a further aspect to this ground that I would mention.  The complainant’s evidence that she was also licked on the breast by the appellant has a degree of equivocality about it – at one point she said that she thought that that happened; at another, she said that it did happen; and at one point she said she did not remember which breast was licked; at another, she said it was the right breast.

[57] Forensic scientific evidence was led in the prosecution case of a saliva swab test taken from the complainant’s right breast.  The evidence was that a substance, Amylase, was detected in the swab.  The forensic scientist testified that Amylase is present in saliva but it is also present in other body fluids including sweat, but in much lower concentrations.  This witness was unable to state the degree of concentration of Amylase on this occasion.  No DNA was detected in the swab sample.[89]

[58] In summary, this scientific evidence was neutral in that it did not establish the presence of saliva, let alone the appellant’s saliva, on the complainant’s breast.  It did not advance the prosecution case.  The learned trial judge instructed the jury accordingly in the following terms:

“ … It didn’t demonstrate anything consistent with the complainant’s account or which tended to prove the guilt of the accused. Therefore, you might think it more important to consider the account of the complainant, the account that the accused gave to the police, and think about those matters rather than the matters of expert evidence, because they will help you to a conclusion in the matter.”[90]

[59] The neutrality of the scientific evidence limited the evidence of licking to the complainant’s varying accounts of it.  That evidential limitation was, however, of no consequence for the alleged touching by hand.  If the jury had been satisfied beyond reasonable doubt that the touching occurred, then that would have been sufficient for them to convict on Count 1.  This, however, is not to imply that there was insufficient evidence on which the jury could have been satisfied beyond reasonable doubt that a licking of the breast occurred.

Ground 4

[60] The question for this Court raised by the fourth ground of appeal is whether it thinks that upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of Count 1.[91]  An analysis of the sufficiency and quality of the evidence is required in order to answer this question.[92]

[61] In the course of considering Ground 3, I refer to the complainant’s unequivocal evidence that the appellant touched her breasts with his hand.  This evidence was not contradicted by sworn testimony; nor was it challenged in cross-examination.  It was consistent not only with what she told the resident but also his observations of her distressed state.  Moreover, this evidence was not inherently improbable.  On that evidence, it was clearly open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the Count 1 indecent assault.

[62] In submissions on this ground, the appellant refers to equivocality in the complainant’s accounts of the licking of her breasts and the neutrality of the saliva swab test.  As explained earlier in these reasons, neither of those matters impaired the sufficiency or quality of the complainant’s evidence that the appellant touched her breasts with his hand.  Further, despite the equivocality, there was credible evidence that the appellant licked the complainant’s right breast.  In my view, it was sufficient to prove beyond reasonable doubt that that act occurred.  This ground of appeal also must fail.

Ground 5

[63] Here, there is no duplicity apparent in the terms in which Count 1 was formulated in the indictment.  The complaint underlying this ground of appeal is of latent ambiguity arising from the circumstance that evidence of touching by the hand and of licking of the breast was adduced to prove Count 1.

[64] The learned trial judge directed the jury with respect to the elements of the offence of indecent assault.  He concluded this aspect of the directions by saying:

“But remember that that first count, the indecent or sexual assault, depends upon a touching of the breast either with the hand or with the mouth in the way that the complainant described.”[93]

No objection was taken to the evidence; no request was made for the prosecutor to particularize Count 1; and no objection was taken to his Honour’s direction.

[65] The appellant submits that the learned trial judge’s description of Count 1 comprehended several distinct bases of criminal liability which gave rise to ambiguity.  The jury were entitled to convict the appellant on Count 1 if they were satisfied beyond reasonable doubt that one or other or both of the touching by the hand and the licking happened; but, the appellant observes , it is impossible to discern in the circumstances whether the jury were, in fact, so satisfied.

[66] The term “latent ambiguity” was used by Dixon J in Johnson v Miller[94] where a complaint alleged a liquor licensing offence.  The complaint was particularized by reference to a “certain person” (unnamed) having been observed leaving the accused’s licensed premises.  Evidence was led of some 30 persons having left the premises within the time period nominated in the complaint.  This evidence exposed an ambiguity in that it was uncertain which of those persons was the certain person to whom the complaint referred.

[67] A comparable circumstance occurred in S v The Queen.[95]  Three counts of incest were alleged.  The counts referred to three different 12 month periods in which three separate alleged acts of incest occurred.  However, the evidence disclosed a number of incest offences during each of those periods, any one of which fell within the description of the count concerned.  This gave rise to a latent ambiguity in each count.

[68] Both of these decisions were cited by Connolly J in R v Morrow and Flynn.[96]  In that case, two accused were tried on an indictment that contained one count of assault occasioning bodily harm, in company.  The evidence established some seven separate incidents which could have been the subject of the count in the indictment.  Some of the incidents related to one or the other only of the accused, while others related to both of them in company.  His Honour (with whom Macrossan CJ and Kelly SPJ agreed) concluded that there was latent ambiguity in the indictment which had led to a substantial miscarriage of justice at trial.  The miscarriage of justice was one which could not be overcome by resort to the proviso in s 668E(1A) of the Criminal Code.

[69] Connolly J reasoned to these conclusions in the following way:

“The nature of the Crown case was never made clear, whether by particulars or otherwise.  By this I mean that it was never made clear what precise offence was charged against the appellants or, if it was sought to have the indictment understood not in its natural sense but as charging several acts by each of them, what those acts were.  Even regarding the indictment as charging conjoint responsibility for the one offence, there was more than one such offence.  It follows that what really happened in this trial is that the jury was faced with evidence of some seven offences where one only was charged and that they were left to decide for themselves of which offence, if any, they were prepared to convict.

…

It is true that the material put before the Magistrate on committal would doubtless have revealed the nature of the allegations, but it could do nothing to identify the offence which was charged by the indictment.  As I have pointed out, even if the indictment be read strictly, there were three episodes, which might have been intended.  If, on the other hand, it were read as pointing indifferently to each appellant as having committed an offence, whether the same offence or not, of assault occasioning bodily harm in company, it was open to the jury to have convicted either or both upon an offence of common assault shorn of the circumstances of aggravation as indeed occurred and there were no less than seven such offences to choose from.  The offence or offences charged were not defined by particulars and the Crown was not called upon to elect upon which offence it would proceed.  As only one offence was properly the subject of the indictment against both or, if the indictment were treated as capable of alleging several offences, against each, there was grave doubt whether evidence of the other offences should have been before the jury at all.  It is conceivable that such evidence might have been introduced in order to rebut possible defences of accidental contact between one or other of the appellants and the complainant, though in the circumstances this seems a little farfetched but, as Dawson J observes in S at 275 the trial proceeded in a manner which made it impossible to deal with questions of the admissibility of similar fact evidence.  It is also the fact that it is, at least theoretically, possible that individual jurors identified different occasions as constituting the relevant offence so that there was no unanimity in relation to their verdict.  See again per Dawson J at 276.  However, as his Honour said in the same judgment, it is more likely that the jury reached their verdict without identifying any particular occasion or occasions.  Finally, as his Honour observed at 276, the law requires that there be certainty as to the particular offence of which an accused is charged, if for no other reason than that he should, if charged with the same offence a second time, be able to plead autrefois convict or autrefois acquit.  At 277 his Honour cites the following passage from the judgment of Dixon J in Johnson v Miller at 489:

‘In my opinion he [the prosecutor] clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint.  For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge.  The court hearing a complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence.’

Dawson J then observes:

‘At all events, where there is real ambiguity and the point is taken, as it was in this case, failure to correct the ambiguity means that the accused has not had a proper trial and there is, for that reason, a substantial miscarriage of justice which precludes the application of the proviso contained in s 689 of the Code.  It is, therefore, unnecessary to consider whether, had the applicant been properly tried, he would inevitably have been convicted.  He was entitled to a fair trial and his conviction in proceedings which were fundamentally flawed cannot be sustained: Wilde v The Queen (1988) 164 CLR 365, at pp 372-373.’

It is true that in this case the question was not raised by counsel for the appellants but I would not regard that as fatal to the conclusion that the proviso cannot be applied in a case such as this.  I am of the view that these proceedings were fundamentally flawed within the meaning of Wilde v The Queen and that in such circumstances the proviso cannot be applied.  See S at 283 per Toohey J and at 287-288 per Gaudron and McHugh JJ.”[97]

[70] The approach adopted by Connolly J in these reasons is, with respect, instructive.  His Honour defined the nature and extent of the latent ambiguity in the case.  He then explained how the ambiguity of that order had impacted upon the conduct of the trial so as to cause a substantial miscarriage of justice beyond application of the proviso, noting how Dawson J had undertaken a similar exercise in S.  His Honour was careful to say that it was those impacts that had resulted in a fundamentally flawed trial and that “in such circumstances the proviso cannot be applied”.  Connolly J did not propound, expressly or impliedly, that whenever there is a latent ambiguity, the proviso cannot be applied.

[71] The approach taken by Connolly J is consonant with observations made by Gaudron and McHugh JJ in S with respect to the jurisprudential underpinnings of the concept of duplicity.  Their Honours said:

“The rule against duplicitous counts has long rested upon a basic consideration of fairness, namely, that an accused should know what case he or she has to meet … of course, the degree of unfairness or prejudice involved will vary from case to case, and it may be … that on occasions that uncertainty is not ‘such as to disable the defendant from meeting the charge’.”[98]

[72] Citing these observations, observations to similar effect made by Dawson J in S[99] and the decision of this Court in Cohen v Macefield Pty Ltd & Ors,[100] Fryberg J in R v Garget-Bennett[101] stated:

“For that reason, a conviction based upon a duplicitous count may be upheld on the ground that there has been no substantial miscarriage of justice, even if an objection was raised at the trial.”[102]

In my view, this statement of the law is well supported by authority and is correct.

[73] In submissions, the appellant referred to the decision of this Court in R v SBQ.[103]  A count of indecent dealing with a child under 12 years of age became duplicitous when the trial judge allowed an amendment to particulars which referred to two separate incidents, one during a game of tiggy outside in a backyard, the other during a game of “spin the bottle” in a cubby house.  Fraser JA (with whom Chesterman JA and Ann Lyons J agreed) was of the view that there was a latent ambiguity in the count and that in charging two quite distinct offences, the count also contravened s 567(3) of the Criminal Code.[104]  The ground of appeal based upon duplicity failed, the court being satisfied that in the particular circumstances of the trial, the error did not result in a substantial miscarriage of justice.[105]  The approach taken in this case accords with the law as stated by Fryberg J and in the observations to which his Honour referred.

[74] Against this background, I now turn to the circumstances of the case under appeal.  I accept that there was a latent ambiguity as the appellant submits.  In so doing, I reject the respondent’s submission that, as particularized by the learned trial judge, Count 1 involved a single course of conduct.  The complainant testified to touching of her breasts by the hand and to the licking of her right breast.  Each was capable of constituting an indecent assault.  In my view, the count so particularized, also contravenes s 567(3).  On that account, the direction given to the jury is capable of being characterized as having involved a wrong decision on a question of law for the purposes of s 668E(1) of the Criminal Code.

[75] I note at this point that in submissions on this ground of appeal, the respondent contended that the jury’s verdict could not have differed even if the particularization had been restricted to touching alone.  This contention was based upon the hypothesis that the licking of the bare breast first required a touching of it by the appellant’s hand in order to expose it.  This hypothesis is factually flawed.  The complainant’s evidence was that it was she who lifted the bra and exposed her breast, albeit it at the appellant’s insistence.

[76] The question that remains is whether no substantial miscarriage of justice occurred as a consequence of the demonstrated latent ambiguity and a wrong decision on a question of law.  These defects did not adversely affect the appellant’s entitlement to know how his conduct was said to offend;[106] they did not bear upon what evidence was received; as explained, the evidence properly admitted at trial was sufficient to prove beyond reasonable doubt both the touching by the hand and the licking;[107] and defence counsel did not object to the direction.  I am therefore satisfied that no substantial miscarriage of justice occurred in the appellant’s case.

[77] A clear contrast can be drawn with the circumstances in Johnson and in S where evidence was given of multiple separate instances, each one of which was capable of meeting the formulation of the count or counts, and in Morrow and Flynn where there were two accused and evidence was given of seven separate incidents in which one or other of them only, or both of them in company, were said to have been involved.  Those circumstances gave rise to complexities for the conduct of those respective trials which were not present in the appellant’s trial.

[78] For these reasons, I consider that this is an appropriate case for application of the proviso.  This ground of appeal also fails.

Disposition

[79] None of the grounds of appeal have succeeded.  The appeal must therefore be dismissed.

Order

[80] I would propose the following order:

1.Appeal dismissed.

[81] MORRISON JA:  I have had the advantage of reading the reasons of Gotterson JA and agree with those reasons and the order his Honour proposes.