R v JAH[2022] QCA 172

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  On 23 September 2021, following a trial by jury, the appellant was convicted of four counts of rape (counts 2, 3, 6 and 10), three counts of supplying the drug cannabis to a child under 16 (counts 1, 4 and 9) and one count of indecent treatment of a child under 16 (count 5).  He was acquitted of a further count of supplying cannabis to a child (count 7) and of rape (count 8).  The complainant, C, was the same child for each of the offences.
2. [2]
   The appellant was sentenced the following day, 24 September 2021, to eight years’ imprisonment for the rapes the subject of counts 3, 6 and 10 and lesser concurrent terms for the other offences.
3. [3]
   The appellant appeals his convictions, on the following grounds:

   1. (a)
      first, that a miscarriage of justice occurred due to the trial proceeding without a particular witness, J, giving evidence or without an alternative process to cure the defects in the fairness of the trial that were caused by her absence; and
   2. (b)
      second, that the learned trial judge erred in failing to give a Robinson direction, causing a miscarriage of justice.
4. [4]
   For the following reasons, the Court is not satisfied that any miscarriage of justice occurred on the basis of ground 1; however, the Court is satisfied that it was an error not to give a Robinson direction, resulting in a miscarriage of justice.  For those reasons, the Court will order that the appeal be allowed, the conviction be set aside, and a re-trial is ordered.

Ground 1 – the witness J

5. [5]
   In order to understand ground 1, it is necessary to set out the procedural history of this matter.
6. [6]
   The indictment was presented on 31 May 2019.
7. [7]
   The evidence of the complainant was pre-recorded on 8 April 2020.  The evidence of other child witnesses was pre-recorded on 23 November 2020.

The earlier trial

8. [8]
   A previous trial of the charges on the indictment commenced on 14 December 2020, before Davis J.
9. [9]
   The complainant, C, was aged 15 at the time of the offences.  She was friends with the appellant’s son, B, who was also 15.  The Crown case was that the offences occurred on four occasions, in the period between 1 January and 31 May 2017, when C stayed with the appellant and his family at their home, during which the appellant was said to have supplied C with cannabis and also sexually offended against her.  The witness, J, was the appellant’s former partner and the mother of their four children, who also lived at the house.
10. [10]
    The earlier trial was opened by the Crown on the basis that J would be called.  As opened, her evidence was expected to confirm some of the surrounding circumstances, including that C stayed at the house at the relevant time.  J was otherwise expected to give evidence that she and the appellant smoked cannabis while C was in the house, but that C was never present while they did that; as to the appellant having some physical limitations and mobility issues; and that she could not recall any time when the appellant was alone with C for any long period of time.^[1]
11. [11]
    On the afternoon of the third day of the trial, following the lunch adjournment, the prosecutor (Mr Corsbie) informed the trial judge that over lunch defence counsel (Ms Cappellano) and he had both met with the witness J and asked her some questions about text messages found on C’s phone.^[2]  The prosecutor said that in his view, her answers were “incredulous”; but he said “I’m still going to call her”.  The prosecutor went on to explain that there were text messages between C and J, where J organised for C to be supplied with cannabis; and messages where, the prosecutor contended, J was clearly telling C to bring what is left of C’s cannabis to the house to be smoked.  The prosecutor accepted that the evidence was not admissible against the appellant; but submitted it would be admissible as a prior inconsistent statement against J, going to her credit.^[3]  The evidence of the text messages was arguably directly inconsistent with J’s expected evidence, based on her police statement, that she “didn’t ever have her [C] around us when we were smoking”.^[4]
12. [12]
    There was a further exchange, between the prosecutor, defence counsel and trial judge, in relation to the evidence of J, including whether she may wish to claim privilege and should be given the opportunity to get independent legal advice.  The trial judge invited the prosecutor to take the opportunity to consider his position overnight.^[5]  The witness J was brought into court, in the absence of the jury, so that the trial judge could explain to her what might occur, and that he would probably give her a warning against self-incrimination, so that she could think about whether she wanted to get advice overnight.^[6]
13. [13]
    The following morning, the prosecutor informed the trial judge that he had “taken some advice” overnight and that he would not be calling J.  He went on to explain that, based on J’s responses in the conference the previous day, “I believe she will lie to protect the defendant”.^[7]
14. [14]
    Defence counsel made an application for a mistrial, particularly in circumstances where the Crown case was opened on the basis that the evidence of J was expected to contradict the complainant.  The trial judge accepted that “this would be a bit of a bombshell into a defence that’s been conducted in a particular way over a lengthy period”.  In addition to the point made by defence counsel, the trial judge observed that he had the impression the pre-recorded cross-examination of the complainant had been conducted on the basis of the evidence J was expected to give, and defence counsel agreed.
15. [15]
    On 17 December 2020, the trial judge ordered that a mistrial had occurred, and the jury was discharged.

Application for a stay

16. [16]
    On 14 May 2021, the appellant applied for an order that the prosecution of the indictment be permanently stayed.  The application was brought on the basis that to proceed with the prosecution would be an abuse of process on the basis that the “Crown’s decision to not call the witness [J], which was made on the fourth day of trial and after all the other Crown witnesses had given evidence, has compromised the possibility of the applicant receiving fair trial”.^[8]
17. [17]
    The application for a stay was heard by Callaghan J, on 19 May 2021.  The same counsel appeared, Mr Corsbie for the Crown and Ms Cappellano for the defence.  In addition to the matters raised before the earlier trial judge, as supporting the mistrial, counsel for the defendant submitted that there were two ways in which the defendant’s ability to receive a fair trial had been compromised by the “defect” (being the prosecution’s decision to not call evidence from J):

    1. (a)
       First, because the Crown’s reliance on J as a prosecution witness at trial was the reason the defence did not pursue an application to sever the indictment prior to trial.

In this regard, it is not controversial that the offences involving supply of cannabis to C were separate from the sexual offending against C, in the sense that it was not alleged, for example, that the cannabis was supplied in order to induce C to engage in sexual conduct with the appellant, nor to stupefy her.  Although, it was C’s evidence that each time the appellant had sex with her, they both had “weed and alcohol” in their system.^[9]  And the Court observes that the complainant’s evidence about cannabis and alcohol use and consumption at the appellant’s house was so intertwined with her evidence about the sexual offending that it is difficult to see how the indictment could have been severed, and the evidence remain comprehensible.

2. (b)
   Secondly, the cross-examination of C and, to a lesser extent, the cross-examination of the other child witnesses, was conducted on the basis J would be called by the Crown to give evidence in relation to the allegations of cannabis supply, the lack of opportunity for the sexual offending to have occurred and the appellant’s physical limitations.^[10]

18. [18]
    In the Crown’s written submissions and then in oral argument, the question was raised whether the problem would be solved if J was called as a witness by the court.  Submissions made by Ms Cappellano, initially, were to the effect “not necessarily”, because then the prosecution would have an opportunity to cross-examine J on the text messages, without first having to “jump through the hoops” of having J declared a hostile witness, which could cause further unfairness to the defendant.^[11]  Nevertheless, the prosecutor ultimately indicated the Crown would make an application for the court to call J “if Ms Cappellano wants us to”.^[12]  Ms Cappellano indicated she needed to take instructions “on what forensic decision would be made from the [appellant’s] point of view”.  Callaghan J refused the application for a permanent stay, in short, on the basis that there were things that could be done to overcome the “defect” identified, in particular the possibility of the court calling the witness J.^[13]

Application for an order that the court call the witness J

19. [19]
    The Crown did subsequently make an application for the court to call witness J.  It was not opposed by the defence.  Callaghan J heard the application on 29 July 2021, allowed it, and made orders as follows:

“(1) The application is allowed.

3. (2)
   That the Crown should serve a subpoena on [J] to attend any further trial of the matter.

3. (3)
   That the Crown is responsible for the costs of any reasonable expenses involved in securing [J’s] attendance at the trial.

3. (4)
   That, at some point in the trial before the defendant is called upon, the Crown prosecutor ask that the witness [J] be brought into the Court room.

3. (5)
   That the Court call and swear the witness [J] before the Defendant is called upon.

3. (6)
   That, to the extent possible, the Crown prosecutor adduce evidence in chief from [J] in the in the usual way.

3. (7)
   That the Crown then be permitted to ask questions of [J] in relation to:

1. (a)
   matters raised in her police statement dated 10 April 2018.

2. (b)
   matters raised in the text messages identified as Exhibit J on the 2020 trial.

3. (8)
   That the Crown prosecutor be permitted to contradict the witness by other evidence, or by proving that the witness has made at other times a statement inconsistent with her testimony, but not general evidence of bad character.

3. (9)
   That in respect of the matters identified in 7(a) and (b) and 8, the Crown may ask leading questions.

3. (10)
   That the defendant or his legal representatives be permitted to cross examine [J] in the usual way.

3. (11)
   That the Crown be permitted to re-examine [J] in the usual way.

3. (12)
   That by 13 August 2021 the Crown file submissions as to the directions that should be given to the jury in consequence of these orders.

3. (13)
   That by 27 August 2021 the defendant file submissions as to the directions that should be given to the jury in consequence of these orders.

3. (14)
   That any further submissions by either party as to the directions that should be given to the jury in consequence of these orders be filed by 3 September 2021.”^[14]

20. [20]
    The limitation of the scope of the permitted cross-examination of J by the Crown reflected a submission made by Ms Cappellano, on behalf of the appellant, that the permitted cross-examination should be so limited, in order to be consistent with the cross-examination that would have been permitted under s 17 of the Evidence Act, had the original trial proceeded with J being declared a hostile witness.^[15]

The second trial

21. [21]
    The second trial commenced before Boddice J on 20 September 2021.  Once again Mr Corsbie appeared for the Crown and Ms Cappellano appeared for the defendant.
22. [22]
    At the start of the trial, there was an exchange between counsel and the trial judge, as to the timing of when J would be called by the court, with the trial judge suggesting this should happen after the Crown had closed its case, and both counsel agreeing with that course.^[16]
23. [23]
    The case was opened by the Crown.  In so far as the witness J is concerned, Mr Corsbie, the prosecutor, said:

“Then, lastly, after all of that evidence, you will hear from [J].  She was the defendant’s former partner who was living at that house.  Now, her evidence is a little bit unusual in that it will come after the close of the Crown case.  Her evidence, I expect, will confirm some surrounding circumstances, that she remembers [C] staying over, she remembers they tried to go to the swimming carnival but didn’t pay so [C] and [B] came home.  And she confirms that she and the defendant did smoke cannabis out of a bucket bong in the garage.  But I expect she will also give evidence that contradicts [C].  That she will say that [C] was never present when she and the defendant smoked cannabis.  And that the defendant was never alone with [C].”^[17]

24. [24]
    The prosecutor finished his opening by telling the jury that “ultimately, the question for you will be, is [C] telling the truth?”.
25. [25]
    Ms Cappellano, for the defendant, also made a brief opening statement at the start of the trial, telling the jury that the “defence case in this trial is that the allegations that have been made by [C] about my client are not true, that is, that the … events described by [C] simply did not occur.  Accordingly, whether or not you have doubts about [C’s] version of events is likely to be the critical question for you to consider when you retire to consider your verdict at the end of this trial”.^[18]
26. [26]
    The first two and a half days of the trial were occupied with much of the recorded evidence being played to the jury.^[19]
27. [27]
    At 1.04 pm on day three, when all the recorded evidence had finished, the following exchange took place:

“HIS HONOUR: Ms Cappellano, is it the case that your client maintains that he wants [J] called?

MS CAPPELLANO: Yes, your Honour.

HIS HONOUR: Your client, I take it, has been informed of the dangers, because having regard to the evidence, I will have to warn her about the privilege against self-incrimination in front of the jury?

MS CAPPELLANO: Yes, your Honour. I can confirm those instructions again over - - -

HIS HONOUR: Well, I would, because if she claims privilege, it could be rather an unfortunate experience, and I think she probably needs to take some advice – some independent advice about this. And it doesn’t seem to me that in this process she’s been considered.

MS CAPPELLANO: That was raised on the last occasion with her in terms of taking independent advice, and the court was adjourned to allow that to occur.

HIS HONOUR: And did she get independent advice?

MS CAPPELLANO: My understanding is she is, but I don’t think I have had - - -

HIS HONOUR: Well, it’s very important, because it seems to be [sic, me] in view of the text messages.[,] I have to also warn her about the risk of perjury.

MS CAPPELLANO: Yes.

HIS HONOUR: And they are real, and what I am seriously concerned about is if she claims privilege, the damage in front of the jury could be devastating for your client in the circumstances. So I just hope everybody has thought about this.

MS CAPPELLANO: Yes, your Honour.

HIS HONOUR: We’ll resume at 2.30.”

28. [28]
    The proceeding was adjourned at 1.06 pm.
29. [29]
    It resumed at 2.28 pm.
30. [30]
    After a brief exchange, to confirm the court was open because there were no more child witnesses, and the recordings were finished, before the jury was brought in, the following exchange took place:

“HIS HONOUR: Yes. Ms Cappellano, can I just explain to you my concern in relation to this matter. As things presently stand, apart from the complainant’s evidence, there is no evidence that cannabis was consumed in the house by your client or by [C].

MS CAPPELLANO: Yes, your Honour.

HIS HONOUR: As I understand it, [J’s] evidence will confirm that cannabis was consumed in the house.

MS CAPPELLANO: Yes, your Honour. And - - -

HIS HONOUR: Just let me finish.

MS CAPPELLANO: Sorry, your Honour.

HIS HONOUR: That, it seems to me, is a fairly important fact from the jury’s point of view that may go towards an aspect of accepting [J’s] account. That is coming because the court is calling the witness. I am extremely troubled about that, because in addition to that, [J], as I understand it, will be denying that there was any cannabis supplied to [C]. There are text messages which it would be open to the jury to find that she’s not telling the truth about that. They will be introduced because the court has called that witness, not for any other reason. The jury may well take the view that that is, in fact, supportive of [J’s] account in relation to matters. And in the circumstances of this case, evidence supportive of aspects of the charges is very likely to be relevant when the jury is considering aspects of the other more serious parts of the charges, namely the rape charges. And I am very, very troubled about the fact that that evidence will be introduced because a court called the witness.

MS CAPPELLANO: Yes, your Honour. In light of those con – the matters that you have raised, they’ve also – I’ve taken instructions in relation to the matter over lunch and addressed – talked to my client about all those concerns that your Honour has raised and other issues. In the circumstances, I now hold instructions that the defendant does not wish to – it wasn’t the defendant’s application, but the defendant does not wish that the court call [J], and I understand that Mr Corsbie will then take a certain course in relation to his initial application.

HIS HONOUR: Yes.

MR CORSBIE: That’s so, your Honour. It was the Crown’s application, effectively on an undertaking on the stay application. In light of the circumstances and the instructions, the Crown seeks to set aside the application and have the orders vacated.

HIS HONOUR: Yes. But how it occurred – well, whoever’s application it was, in truth, it was the defence was saying there was an unfairness because the Crown was not calling [J]. So whichever way you want to call the application, who brought it, that was the basis – that’s the basis - - -

MS CAPPELLANO: Certainly, your Honour.

HIS HONOUR: That’s the basis that the trial went off. So we don’t need to worry about the technicalities. The defence wanted the person called. I’m troubled about the consequence in relation to that. But anyway, it’s not happening now, so we don’t need to worry about it.

MR CORSBIE: Certainly.

HIS HONOUR: All right, then. Thank you. We’ll have the jury - - -

MR CORSBIE: Just before we have the jury back, though - - -

HIS HONOUR: Yes.

MR CORSBIE: - - - your Honour mentioned that there was no other evidence that cannabis was consumed at the house. The jury will hear some evidence from the police officer [MM] that there was a grinder located in the downstairs garage area that smelled of cannabis.

HIS HONOUR: Well, that may be – what I’m saying is that - - -

MR CORSBIE: That’s the extent of it.

HIS HONOUR: - - - there would be direct evidence that she and the defendant consumed it. The grinder could be an old thing that had been there a long time.

MR CORSBIE: Certainly.

HIS HONOUR: There wouldn’t have been any direct evidence. There would if [J] was called.

MR CORSBIE: Yes, your Honour.” [emphasis added]

31. [31]
    To put the trial judge’s comments into perspective, it is apparent from defence counsel’s (pre-recorded) cross-examination of the complainant, that it was the appellant’s case that he never gave C marijuana, that J never gave her marijuana, that the appellant was never present at any time at which C received marijuana and that the appellant never smoked marijuana in C’s presence.  It was also the appellant’s case that he never engaged in any sexual behaviour with C.^[20]  In that context, the trial judge’s point was that: if J was called as a witness, evidence would be introduced which was inconsistent with that, and consistent with C’s allegations.  It would be the only such evidence.  The fact of J being called by the court, which was an unusual course, might give her evidence greater prominence to the jury; and, if she claimed the privilege against self-incrimination, in light of C’s evidence as to the extent to which both the appellant and J had provided her with marijuana, that might lead the jury to think more favourably about the credibility and reliability of the complainant.
32. [32]
    It should be noted that it would seem the reference to a potential need to warn about perjury may have been incorrect, as it is difficult to see how that might have arisen.  But this does not affect the issues next addressed.

The appeal

33. [33]
    On the appeal, counsel for the appellant (who was not trial counsel) emphasised that this first ground of appeal does not involve any criticism of the Crown’s decision not to call J.  Rather, the argument is that in the circumstances of this case, J not giving evidence led to a miscarriage of justice.  Those circumstances are said to include that: J was clearly regarded as a material witness; right up until day three of the second trial, the trial was run on the basis that J would be called as a witness, and would give evidence as to the lack of opportunity for the appellant to sexually offend against C, and as to the appellant’s physical limitations; tactical and forensic decisions had been made on that basis (including as to not seeking to sever the indictment, and the scope of cross-examination of the complainant and other child witnesses); and, as it was submitted, that there was “no objective forensic reason” to say the defendant no longer required J to be called, against the background of the matter.
34. [34]
    It must be emphasised that the appeal is not being brought on the basis of any suggestion of incompetence of defence counsel at the trial.  That was expressly disavowed by the appellant’s counsel on the appeal.  The submission was, nonetheless, that a miscarriage of justice had occurred.
35. [35]
    The respondent submits that, in circumstances where there is no error contended in the decision of the prosecutor not to call J, the potential for miscarriage has to be considered in the context of a decision made, not only by defence counsel, but by the appellant himself, as is apparent from the exchange extracted above.  Counsel for the respondent submits that it cannot be known precisely what matters were taken into account in reaching that decision – emphasising the reference to the trial judge’s concerns “and other matters” – but submitted there was one other change and that was the “dynamic situation of a trial”, including the fact that there was a new jury.  In addition, counsel for the respondent submitted that, in terms of the material evidence J was said to have been expected to give (opportunity and drug consumption in particular, but also physical limitations) that evidence was before the jury in any event, including in the form of admissions about what the appellant’s son, B, said when he was interviewed by police on 15 May 2018.  This included that he had not seen C being supplied with cannabis by the appellant; that he had not seen the appellant consuming cannabis; and he had not seen any sexual offending by the appellant against C.^[21]
36. [36]
    The circumstances of this case were unusual.  As the High Court explained in R v Apostilides (1984) 154 CLR 563, the power in the court to call a witness is to be exercised only in the most exceptional cases.  In this regard, the Court said (at 576):

“The circumstances which would justify such a course would be rare.  It is clear to us that more would be required to establish ‘most exceptional circumstances’ than the refusal of the prosecutor, for reasons which the judge thinks insufficient, to call a witness.  Some of the reasons for the need for the extreme reluctance with which the trial judge should even consider usurping the responsibility of the parties with respect to the calling of the witnesses appear in the following passage from the judgment of Dawson J in Whitehorn:^[22]

‘A trial does not involve the pursuit of truth by any means.  The adversary system is the means adopted and the judge’s role in that system is to hold the balance between the contending parties without himself taking part in their disputations.  It is not an inquisitorial role in which he seeks himself to remedy the deficiencies in the case on either side…  As was pointed out in Richardson v The Queen,^[23] he frequently lacks that knowledge and information about the witness or his relationship to the parties and to the evidence to be presented which is essential in making such a decision.  If he calls a witness himself he will almost always have to do so in the dark, not knowing with any certainty what the witness is going to say or whether he can be relied upon: cf R v Collins.^[24] If the witness is unreliable (and if neither party has seen fit to call him, that is more likely than not), the fact that he is called by the judge may give his evidence an undesirable aspect of objectivity.  There can be no assurance that his credit will be tested by either side but, if it is, the judge has no means whereby he can ensure that any necessary steps to re-establish the witness’s credit are taken.  Because the judge does not know what a witness called by him may say, he may by calling him necessitate the calling of further evidence so that the trial takes a turn which was not intended and which further involves the judge in a function not appropriately his.

Moreover, evidence called by a trial judge may have the effect of shifting the ground upon which the parties have determined to contest the issue.’”

37. [37]
    There is no challenge to, or criticism of the decision that was previously made for the court to call the witness J.  That ruling was made, as discussed above, in the context of the appellant’s application for a stay following the first mistrial.  It was agreed to by both prosecution and defence counsel.
38. [38]
    It is not necessary to consider whether there was a “special reason” as contemplated by s 590AA(3) of the Criminal Code, as the appellant places no reliance on this provision.  Rightly so; because at the second trial there was no application to reopen the ruling.  Rather, on the basis of the instructions provided by the appellant, and conveyed to the court, that he did not want the witness J to be called, the Crown sought to “set aside the application” and have the order vacated.^[25]
39. [39]
    All that happened was that the trial judge posed the question, in a two minute exchange with counsel, as to whether the parties had considered the implications, for the appellant, of introducing J’s evidence, in circumstances where that was to be done by the court calling her as a witness, and where she would need to be warned about self-incrimination.  The trial judge did not say that he would not proceed in accordance with the ruling.
40. [40]
    It is apparent from the transcript that, over the hour and a half lunch adjournment there was consideration given to that issue; instructions were taken from the appellant in relation to the concerns the trial judge had raised “and other issues”; the appellant’s instructions were that he “does not wish that the court call [J]”; and there was discussion between the prosecution and defence counsel, such that it had been agreed that the prosecution would seek to set aside its application and vacate the ruling that had been made.  It is quite clear, from the transcript, that all of that had occurred by the time court resumed at 2.30 pm.^[26]  The position put to the trial judge following the lunch adjournment was the position of both parties.  The further comments made by the trial judge after lunch did not impact upon that – the decision was clearly already made, on instructions.
41. [41]
    Objectively, there was a sound forensic basis for that decision – having the court call J could give her evidence an added aspect of objectivity, which may have been misplaced.  Whilst she may have given the evidence otherwise expected, as to a lack of opportunity; the text messages would also have gone into evidence, from which the fact that all three – the appellant, J and the complainant C – were using cannabis together would emerge, which would only serve to support the Crown’s case and the credibility of the complainant’s evidence.  On one view of the text messages, the jury could have concluded J was lying about C’s exposure to cannabis by the appellant and her, which could undermine other aspects of J’s evidence (for example, as to opportunity, which was by no means definitive in any event).
42. [42]
    Both prosecution and defence counsel had been involved in the proceeding every step of the way, from the first trial, through the subsequent applications, and the second trial.  The exchange before lunch lasted two minutes.  It is not accepted that, in the face of the history of the matter, in which the same counsel had been involved, that two minute exchange could have been such as to result in defence counsel capitulating without a rational, forensic reason for doing so, and on the basis of instructions.  Trials are dynamic.  It is not for this Court, nor was it for the trial judge, to know precisely what informed that decision.  But it was a decision clearly made, and communicated to the trial judge as the position of both parties.
43. [43]
    In those circumstances, there was no obligation on the trial judge to independently consider whether, in spite of both the prosecutor and defence counsel saying to the court that they no longer required the court to call the witness J, the court should, in any event, call the witness.  As already mentioned, the exercise of the power of the court to call a witness in a criminal trial is to be exercised rarely, and only in the most exceptional circumstances.^[27]  Part of the policy behind that principle is that a judge ought be careful not to overrule the discretion of counsel who are more fully aware of the facts of the case.^[28]
44. [44]
    In so far as the ground of appeal also complains about the failure to provide for “an alternative process to cure the defects in the fairness of the trial that were caused by [J’s] absence”, there was no suggestion of any other process or mechanism put to the trial judge by either the prosecution or defence counsel.  In those circumstances, it was appropriate for his Honour to act on the position put to him by both parties, and no miscarriage of justice can be said to have occurred as a consequence.
45. [45]
    For completeness, it is noted that, in the trial judge’s summing up, his Honour did give a Jones v Dunkel direction, in relation to J, as follows:

“… it may appear to you that [J] might have been able to give some relevant evidence.  You may not speculate about what she might have said if she had been called as a witness.  You act only on the evidence that has been called, and only on that evidence.”

46. [46]
    This was appropriate in circumstances where reference was made to J as a potential witness in the Crown’s opening, and her name also came up in the course of the evidence of other witnesses during the trial.
47. [47]
    In short, given that the position put to the trial judge, in relation to witness J, was the position of both parties, and, for the defence, on the basis of the appellant’s instructions, the Court is not persuaded that any miscarriage of justice occurred as a result of the failure of J to be called as a witness in the trial.

Ground 2 – failure to give a Robinson direction

48. [48]
    A Robinson direction is a reference to a direction of the kind addressed in the High Court’s decision in Robinson v The Queen (1999) 197 CLR 162.  That case, and the relevant principles, were the subject of recent discussion in R v VM [2022] QCA 88 in the reasons of Sofronoff P at [31]-[40], with which Mullins JA (as her Honour then was) and Kelly J agreed.
49. [49]
    The relevant principle is that, whilst provisions such as s 632 of the Criminal Code prohibit the giving of a warning to the effect that a particular class of witness (for example, a child) is considered unreliable, that does not prohibit the giving of a warning about the potential for unreliability of a witness according to the particular circumstances of the case.
50. [50]
    Section 632 of the Criminal Code provides:

“632 Corroboration

3. (1)
   A person may be convicted of an offence on the uncorroborated testimony of 1 witness, unless this Code expressly provides to the contrary.

Note –

See sections 52 (Sedition), 125 (Evidence on charge of perjury) and 195 (Evidence).

3. (2)
   On the trial of a person for an offence, a judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated testimony of 1 witness.

3. (3)
   Subsection (1) or (2) does not prevent a judge from making a comment on the evidence given in the trial that it is appropriate to make in the interests of justice, but the judge must not warn or suggest in any way to the jury that the law regards any class of persons as unreliable witnesses.

Note for subsection (3) –

See also the Criminal Law (Sexual Offences) Act 1978, section 4A and the Evidence Act 1977, section 132BA.”

51. [51]
    In Robinson the High Court said:

“19 Sub-section [632(2)] is to be understood in the light of common law rules which developed by way of qualification to the general principle stated above.  Since an accused person could be convicted on the evidence of one witness only, the law was required to address the problem of unreliability.  Such unreliability could arise from matters personal to the witness, or from the circumstances of a particular case.  The law requires a warning to be given ‘whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case’.^[29]  …

20 Once it is understood that s 632(2) is not aimed at, and does not abrogate, the general requirement to give a warning whenever it is necessary to do so in order to avoid a risk of miscarriage of justice arising from the circumstances of the case, but is directed to the warnings required by the common law to be given in relation to certain categories of evidence, its relationship to the concluding words of s 632(3) becomes clear, although the symmetry between the two provisions is not perfect.

21 Sub-section (2) negates a requirement, either generally or in relation to particular classes of case, to warn a jury ‘that it is unsafe to convict the accused on the uncorroborated testimony of 1 witness’.  That does not mean, however, that in a particular case there may not be matters personal to the uncorroborated witness upon whom the Crown relies, or matters relating to the circumstances, which bring into operation the general requirement considered in Longman.  Moreover, the very nature of the prosecution’s onus of proof may require a judge to advert to the absence of corroboration…” [emphasis added]

52. [52]
    As was reiterated in R v VM at [36], the principle that underlies a requirement to give a warning about particular evidence at trial is not just that the evidence might possibly be unreliable but that, without such a caution or warning, a jury might not appreciate that it might be so.^[30]
53. [53]
    In Bromley v The Queen the matter affecting the particular witness, which was said may affect their capacity to give reliable evidence, was a mental illness, namely, schizophrenia.  A direction, that the jury should approach the witness’ evidence with caution and scrutinise it with special care was said to be appropriate;^[31] although Brennan J emphasised that there is no universal rule of practice in this regard, that all depends on the circumstances, and the guiding question is whether the conduct of the trial, and the evidence about the matter(s) affecting the particular witness are such that the jury may not have fully perceived their potential impact.^[32]
54. [54]
    Here, what the appellant submits is that there were matters personal to the complainant, upon whom the Crown relied to prove the charges against the appellant, which could be seen to affect her reliability, which brought into operation the general requirement considered in Robinson and called for a warning from the trial judge for the jury to consider her evidence with care.
55. [55]
    At the trial, defence counsel requested that a Robinson direction be given; but the trial judge ruled that it was not required.  That came about in the following way.  At the close of the Crown case, on day three of the trial, the defendant was called upon.  He indicated, through his counsel, that he did not wish to give or call evidence.  A discussion then took place, in the absence of the jury, about directions to be given as part of the summing up.
56. [56]
    Ms Cappellano, for the defendant, asked that a Robinson direction be given.  The trial judge asked why?  Ms Cappellano said there were a number of issues, including:^[33]

    1. (a)
       internal inconsistencies within C’s evidence;

Counsel referred, for example, to the complainant’s evidence, in the first recorded interview with police on 31 July 2017, in which she had described the first time the appellant offended against her; at first describing this as the “horrible night”, before later correcting herself and saying this happened in the morning.^[34]  There were a number of other inconsistencies relied upon by defence counsel in her closing address to the jury.^[35]

2. (b)
   the complainant’s complex mental health issues that were operative at the time;

In this regard, the evidence included that, at the time C stayed with the appellant and his family, she was attending a special education unit at a local high school, and one of the reasons for that was because of her diagnosis of autism spectrum disorder.  And that by this time (early 2017) she had been seen by doctors for other conditions, including anxiety (including separation anxiety, in relation to her mother) and borderline personality disorder (suspected but not yet diagnosed, as the complainant was not yet 18).  She had also been treated for depression and, a couple of years earlier (2015-2016) for obsessive compulsive disorder.  The evidence about obsessive compulsive disorder was that it arose from interactions with C’s twin sister, in terms of C feeling that her sister was contaminating her through hugs.  There was also evidence that, by early 2017, C had engaged regularly in self-harming behaviour, including cutting herself; and that in 2015 and 2016, she had attempted to overdose by ingesting Panadol and ibuprofen, on two occasions in 2016, leading to hospitalisation in a mental health hospital.  In addition, there was evidence of C having issues with anger and violent behaviour, which had caused her difficulties with her mother, leading to her being “kicked out” of her mother’s home, and going to live with her grandfather, before staying at the appellant’s home; and also some issues at school and when she was at the mental health hospital.^[36]

3. (c)
   that the complainant had been prescribed both antidepressant and, in August 2016, antipsychotic medication and had stopped taking her medication, or at least the antipsychotic medication, at the time she stayed at the appellant’s home in early 2017;^[37] and
4. (d)
   at the same time, she was “self-medicating” on a daily basis with alcohol and marijuana.^[38]

57. [57]
    In relation to what were submitted to be internal inconsistencies, the trial judge said he would not give a Robinson direction on that basis; that it was a matter for counsel to make submissions about and a “matter entirely for the jury”.  Defence counsel submitted that she was not relying solely on the internal inconsistencies, but that it was the number of issues in combination which, in her submission, warranted such a warning from the trial judge.  The trial judge pressed defence counsel as to how the other matters, such as her mental health conditions, affected her credibility, in terms of rendering her a dishonest witness; and noting that defence counsel had not put to the complainant that those conditions affected her memory, or that the fact she ceased medication had any impact on her.  His Honour said, in relation to a Robinson direction, “this is about her credibility”, and that he was not satisfied the matters outlined by defence counsel were enough to justify such a direction.^[39]
58. [58]
    The trial judge did agree to give a direction more generally in relation to C’s mental health issues.  The direction given was in the following terms (after the general directions about factors the jury might take into account in considering what evidence they accept or do not accept):

“I will, however, mention one matter in assessing the evidence of [C].  You heard in her cross-examination that she suffers from a number of mental health conditions.  The existence of those conditions do not of themselves render her an unreliable witness.  There is no evidence that those conditions affected her reliability or her memory.  However, if you consider that those conditions, having regard to her evidence that she had been prescribed medication but had ceased taking the medication at the time of these alleged events, impacts on her reliability and credibility, you may properly take that matter into account in determining what weight, if any, you give to her testimony.”^[40]

59. [59]
    His Honour also directed the jury, in general terms, in relation to inconsistencies in the complainant’s accounts, as follows:

“Eighth, there have been inconsistencies in the accounts given by the complainant as to what might be said to be the timing of the various acts of rape. Inconsistencies in describing events are relevant as to whether or not evidence about them is truthful and reliable. The inconsistencies are a matter for you to consider in the course of your deliberations. But the mere existence of inconsistencies does not mean that of necessity you must reject the complainant’s evidence. Some inconsistency is to be expected because it is natural enough for people, who are asked on a number of different occasions to repeat what happened at an earlier time, to tell a slightly different version each time.”^[41]

60. [60]
    And his Honour directed the jury, on at least four occasions,^[42] that the central question was whether they accepted the complainant as a reliable and truthful witness.
61. [61]
    What his Honour did not do, however, was direct the jury to scrutinise the complainant’s evidence with great care before arriving at a conclusion of guilt, given the combination of issues which were highlighted by defence counsel.  This ought to have been done, because there were matters personal to the complainant as a witness, that could have affected her reliability, which may not otherwise have been apparent to the jury, and which the general directions given in relation to mental health and inconsistencies did not adequately highlight.
62. [62]
    Importantly, as Robinson at [19] makes clear, it is reliability that a direction of this kind is aimed at, not honesty (or credibility).  There need not be direct evidence that matters personal to the witness, or the circumstances of the case more generally, may affect the witness’ reliability.  Perhaps the inconsistencies alone would not be such as to warrant a Robinson direction; although they were quite significant.^[43]  But where the complainant who gives evidence, affected by such inconsistences, is a 15 year old, with an extremely complex mental health history, including diagnoses of obsessive compulsive disorder, autism spectrum disorder, depression and anxiety, as well as suspected borderline personality disorder (not yet diagnosed, given her age), who had been prescribed both anti-depressant and anti-psychotic medication, and had ceased taking it prior to the time of the alleged offences, seemingly of her own volition (as opposed to on medical advice), and who was instead “self-medicating” with alcohol and cannabis, those were, in combination, circumstances that could potentially affect her reliability, in a manner that a lay jury may not have appreciated.  Those circumstances, in combination with the inconsistencies, called for a direction carrying with it the authority of the trial judge, that the case turned on whether the jury accepted the complainant’s evidence as truthful and accurate; that they could convict on the basis of her evidence; but that they would need to scrutinise her evidence with great care before arriving at a conclusion of guilt, taking into account the circumstances already mentioned.
63. [63]
    The failure to give this direction resulted in a miscarriage of justice.
64. [64]
    Accordingly, the Court orders:

3. (1)
   The appeal against conviction is allowed.

3. (2)
   The verdict of guilty is set aside.

3. (3)
   A re-trial is ordered.