Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Particular grounds - Irregularities in relation to jury - Misconduct - Jurors taking private view and telephoning Weather Bureau - Judge's direction to disregard sufficient to prevent miscarriage of justice. Webb v R (1993 - [1994] HCA 30; 1994) 181 CLR 41, followed.

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Particular grounds - Improper admission or rejection of evidence - Admissibility of expert evidence concerning other possible mental states suffered by the complainant - Evidence could not establish a mental disease or abnormality which deprived the complainant of the capacity to recollect or recount the truth. Bromley v R [1986] HCA 49; (1986) 161 CLR 315, Toohey v Metropolitan Police Commissioner (1965) AC 595, considered.

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Particular grounds - Fresh evidence - Availability at trial; materiality and cogency - Materiality and cogency - Evidence directed to credit - Unlikely a different conclusion would have been reached if fresh evidence had been admitted on the trial. Gallagher v R (1985 - [1986] HCA 26; 1986) 160 CLR 392, applied. Mickelberg v R [1989] HCA 35; (1989) 167 CLR 259, R v McIntee (1985) 38 SASR 432, considered. Evidence Act 1910 (Tas), s81L.

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Particular grounds - Misdirection and non-direction - Expression of judge's own opinion - Whether defence adequately put.

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Grounds for interference - General principles - Held not manifestly excessive.

2 Application for leave to appeal against sentence granted.

3 Appeal against sentence dismissed.

COX CJ The appellant, a Minister of Religion, seeks to set aside his conviction on one count of assault, one count of aggravated sexual assault and four counts of rape and seeks leave to appeal against the sentence of eight years' imprisonment imposed upon him by the learned trial judge.

"1 THAT the Learned Trial Judge erred in law by ruling as

admissable (sic) evidence of the existence of a necktie

allegedly photographed within the appellant's home on or

about the 15th of October 1993.

2 THAT the Learned Trial Judge erred in law by ruling

admissable (sic) evidence that the appellant had been

involved in a violent incident at his home on or about the

15th of October 1993.

3 THAT the Learned Trial Judge erred in law by holding that

at the close of the Prosecution's case the accused had a

case to answer in relation to counts one to eleven inclusive

on the indictment.

4 THAT the verdicts of the jury were unreasonable or cannot

be supported having regard to the evidence.

5 THAT the verdicts of the jury were unsafe and

unsatisfactory.

6 THAT the Learned Trial Judge erred in law by failing to

exercise his discretion in favour of the accused and order

that the jury be discharged after certain members of the

jury embarked on an unauthorised fact finding exercise

(application was made for a discharge at p 1092 of the

transcript).

7 THAT the Learned Trial Judge erred in law by ruling that

it was impermissible for the defence to introduce evidence

from the defence witness, Dr Sale, concerning other possible

mental states suffered by the complainant. Such evidence

being relevant to the reliability of the complainant's

allegations.

8 THAT the appellant seeks leave to introduce fresh evidence

on appeal pursuant to S409 of the Criminal Code Act, 1924.

The fresh evidence comprises a report made by the brother of

the complainant to the police that the complainant '... was

grabbed about six hours ago by four blokes who had him tied

hand and foot.'

9 THAT the Learned Trial Judge erred by instructing the jury

that 'Dr Sale's opinion really does not count for anything

because he did not get to the stage of diagnosing an actual

medical condition which would be on your experience and

mine'.

10 THAT in all the circumstances the sentence imposed upon

the applicant was manifestly excessive."

Grounds 2 and 3 were abandoned on the hearing of the appeal.

3. In brief, the facts asserted by the Crown were that on 22 February 1994 the complainant and the appellant were drinking at the Empire Hotel in Elizabeth Street, North Hobart. At about 7.40pm the complainant was discovered by three elderly women sitting on the road adjacent to the western entrance of the Empire Hotel. The complainant was significantly inebriated. The women rendered him assistance by removing him from the path of on-coming traffic. The appellant appeared on the scene and had a short conversation with the elderly women and agreed to assist the complainant. Subsequently, the appellant conveyed the complainant to his home in Campbell Street, Hobart. At the home of the appellant, the complainant was assaulted and sodomised by the appellant and another unknown male person identified by the complainant as "Frank" or "the animal". At the conclusion of this alleged attack by both men, the complainant was manacled with a necktie and a pillowcase was placed over his head, blindfolding him. He was then conveyed by car to a place in North Hobart and left in the street in the early hours of Wednesday 23 February 1994. The complainant managed to remove the hood and made his way to his brother's home in Elizabeth Street, North Hobart, but was unable to locate him. From these premises he walked to an address in George Street, North Hobart, the home of another brother, Scott, arriving at approximately 4am. The complainant managed to attract his brother's attention and the latter rendered him assistance, removing the manacle and calling the police. The manacle consisted of a necktie which Scott handed to the police. According to the brother, the necktie was tied so tightly that he had to cut it from the complainant's wrists with a carving knife. The complainant was taken to the Royal Hobart Hospital and was medically examined. Thereafter that morning he was interviewed by police.

4. The previous October the appellant was involved in an incident where he was seriously assaulted by two men whom he had invited to his home. In the course of this assault he had been beaten, bound and placed in a cupboard in his bedroom. Police were called and the premises at Campbell Street, Hobart were photographed. Appearing in some of the photographs are a number of neckties strewn on the floor of the appellant's loungeroom. One of them appears to be, if not identical, certainly very similar in pattern and style to the necktie which was discovered binding the complainant's hands when he arrived at his brother Scott's house in the early hours of 23 February 1994. The Crown also called scientific and other evidence which was capable of suggesting that the complainant had been sexually assaulted by somebody, but scientific evidence in no way identified the appellant as the perpetrator of any sexual assault.

5. The defence case was that the appellant, who had spent some time at the Empire Hotel on the afternoon in question, came upon the complainant as he was leaving the hotel. Finding that the complainant was in a very drunken condition, he offered him assistance and brought his car to the hotel where, with the assistance of the women who were standing nearby with the prone complainant, he placed him in his car. The appellant, in a lengthy record of interview with police, described how the complainant fell asleep in the car, preventing the appellant from obtaining his home address. The appellant, not wishing to abandon the complainant in the street, decided to take him home in order to give him the opportunity of sobering up. He accordingly conveyed the complainant to his home, took him to his bedroom and placed him in his bed for a short period. About an hour after his first arrival at the appellant's home he was roused by the appellant, taken downstairs and driven to a place adjacent to the Elizabeth College where the complainant alighted from the car and disappeared. Thereupon the appellant returned home. He was not prepared to concede ownership of the tie which had been used to shackle the complainant's hands but conceded it might have been given to him in the past or left behind by a visitor. He denied any form of assault having been perpetrated by him upon the complainant and that he had been accompanied by a third person at any time.

6. The necktie removed from the complainant's hands by his brother Scott was coloured orange and was of a quite distinctive pattern. If it came from the appellant's home, it added considerable cogency to the complainant's allegation that he had been assaulted there, manacled as claimed and taken away and dumped nearby, still shackled. The police happened to be in possession of photographs, lawfully obtained during an investigation into a previous assault on the appellant and which showed a number of ties on the appellant's premises. One of these ties bore the same distinctive and rather flamboyant pattern as that removed from the complainant's wrists. The photograph was a colour photograph and showed a considerable portion of the tie, both front and back. The jury had an ample basis for making a fair comparison between the tie tendered as an exhibit and that depicted in the photograph. The photograph was, in my opinion, clearly relevant and admissible. It was for the jury to evaluate it. It is true there was no evidence as to where the tie had been manufactured or purchased, nor how many similar ties had been produced and sold. But it did not become inadmissible because other similar ties might have existed and thus might have reduced the likelihood that this tie had come from premises at which, it was common ground, the complainant had been present a few hours before he was discovered by his brother. Counsel for the appellant argued that the evidence was incapable of satisfying the jury beyond reasonable doubt that the tie in question was the same as that photographed in the appellant's home four months earlier. Even if it were not it did not thereby become inadmissible. In any event it was not necessary for a conviction that the jury read such a degree of satisfaction about the tie. The evidence was corroborative of the complainant's version of events. Even where as a matter of law or practice, corroboration is necessary for conviction or its absence without due warning to the jury will require a conviction to be quashed, corroborative evidence need not have the quality of being evidence establishing any proposition beyond reasonable doubt (Doney v R [1990] HCA 51; (1990) 171 CLR 207). In my opinion, there is no substance in this ground of appeal.

7. For the reasons given by Slicer J, I agree that these grounds are not made out.

8. The appellant gave evidence on 3 July 1995, the trial having commenced on 19 June and the first witness having been called before the jury on 22 June. It concluded on 7 July 1995. In the course of his evidence he said that having encountered the complainant sitting on the footpath beside the hotel in a state of distress, he went along Burnett Street to where his car was parked on the same side as the hotel about 100 metres away and drove it back, where he helped the complainant into it. Thereafter he had taken him to his own place and looked after him before taking him back by car to Elizabeth Street, unmolested, and there dropping him off about an hour later. One of the female witnesses, Mrs Vickers, who waited with the complainant while the appellant went to get his car, said that he was gone "it seemed like a good while but it was probably not more than eight minutes maximum". In cross-examination she said he was gone "definitely more than four minutes ... I think it would be a bit longer than five minutes ... All I can remember is one of us said 'he's taking his time'". A second, Mrs Lewis, said he was gone "about five minutes ... It was long enough for us to wonder whether in fact he was coming back at all". The incident occurred at about 7.30pm.

9. The appellant was cross-examined by the Crown Prosecutor about the length of time it would take him to walk from the hotel to his premises in Campbell Street and return by car. He agreed that this could be achieved within eight minutes. He was asked if it was possible that that is what he did, and replied "Absolutely not". Counsel for the appellant submits that there was an innuendo in the cross-examination that the appellant had in fact done so, that this indicated he was prepared to go to considerable lengths to get the complainant in his power and that his explanation of a spontaneous "good Samaritan" response to the situation by putting him in a car which happened to be parked nearby was untrue. It is in that context that the undoubted irregularity complained of in this ground is to be judged.

10. On the day after the appellant gave his evidence, the learned trial judge's associate was told by the jury forewoman that some members of the jury had visited the area of the hotel and that one had made a telephone enquiry of the Hobart Weather Bureau to determine what time sunset was in February. His Honour, on the resumption of the hearing, asked the forewoman what had happened. The following exchange occurred:

"MADAM FOREWOMAN: A couple of the guys sort of just checked

the walking distance, I mean they were sort of up there

doing stuff.

HIS HONOUR: What, just had a look at the scene and walked

down the street and counted the paces and that sort of

thing?

MADAM FOREWOMAN: Yes, just had a look at, if it was a clear

way in Burnett Street and just sort of, just to get the

perspective of the distance that the car was said to have

been parked from the hotel.

HIS HONOUR: Okay. And then there was some question about

someone getting in touch with the Weather Bureau I think?

MADAM FOREWOMAN: Yes, somebody got in touch with the Weather

Bureau just to find out what time sunset was.

HIS HONOUR: On the Twenty-Second of February? Yes, right.

Did that person who made that contact say anything to the

Weather Bureau? 'I'm asking this because I'm on this Jury'

or something like that?

MADAM FOREWOMAN: Oh no, I don't think so.

HIS HONOUR: It was just a straight out question?

MADAM FOREWOMAN: Straight out, you know sort of what time

did the sun set.

HIS HONOUR: All right, and that's all?

MADAM FOREWOMAN: Yes.

HIS HONOUR: Thank you. You see it's very important that

Jurors decide the cases on the evidence, that's what your

Oath requires you to do, and the evidence is confined to

what you see and hear in this Court room and not what you

might learn from outside, and for example you just mention

in passing to see whether Burnett was a clearway, it might

or might not be a clearway today, it's a question of whether

is was on the Twenty-Second or Twenty-Third - so you can be

misled, I don't think that's of significance in this case

but it serves to illustrate the point as to why jurors

should confine themselves to what they've seen and heard.

And it might be that the officer who answered the query at

the wether bureau made a mistake in giving the answer but if

it had come to you through the witness box, both counsel

would have checked and double checked the information and

you would have been sure it was accurate. So it's very

important that you don't do those things and just rest on

the evidence."

11. Counsel were asked if they had any submissions and counsel for the appellant reserved his right to apply for a discharge of the jury until he had had the opportunity to obtain written instructions. The trial proceeded and the following day counsel for the appellant applied for the jury to be discharged. He submitted that the actions of the jurors were not without significance in view of Crown counsel's questions suggesting that the appellant had gone to the trouble of going home for his car and that they amounted to an unauthorised investigation of the credibility of the appellant's denial of that suggestion. In view of certain newspaper reports of the exchange with the jury the previous day, his Honour broached the subject again with the jury. The reports were not before us but it appears that they were such as to suggest to the learned trial judge that detailed measurements of distance and time might have been undertaken by some members of the jury. This exchange then followed:

"HIS HONOUR: I need to know a little bit more about what

those who went to Burnett Street did and in particular I

want to know if any more was done than simply walking to

Burnett Street, walking up and down a bit, having a look

around, noting the various land marks, the position of the

Empire and where the hotel ends and where the shops begin

and so on because I have in mind from the answers yesterday

there is a possibility that whoever went there might have

perhaps taken measurements and used a watch and time things,

that sort of thing, which would really be going into

evidence wouldn't it and I felt I just left that issue open.

So madam forewoman could you help me a little bit about

that.

FOREWOMAN: Yeah, just what I've been told. When the weather

bureau got rung up it was only sunset for the middle of

February, there was no mention of when in February or what

year and from the walking it was just sort of checking where

things were - no actual measurements.

HIS HONOUR: No question of pace - sorry.

FOREWOMAN: No actual - well, like the newspaper reported

pacing, there was sort of none of that, it was just go up,

have a look around and just sort of see what was up there

and -

HIS HONOUR: Generally the topography of the scene?

FOREWOMAN: Yes.

HIS HONOUR: Yes, all right.

JUROR: Your Honour, I am involved and -

HIS HONOUR: That's right - I hasten to add there is no

question of blame about this, it is very understandable.

JUROR: No, I've got no problem at all. I was driving up

Burnett Street from Argyle Street to Elizabeth Street and

observed the signs, I didn't get out of the car, that's all

I'd do, so that's why I asked about - it's not hearsay, it's

something I saw -

HIS HONOUR: Yes.

JUROR: And I just had a doubt about - I just wanted to

confirm what time it got dark in February.

HIS HONOUR: Right.

JUROR: And I rang the weather bureau and I said could you

please - a woman answered and I said could you please tell

me what time it gets dark around about the middle of

February and she went away and came back and said such and

such with an hour's twilight.

HIS HONOUR: Right.

JUROR: That's all that was said.

HIS HONOUR: Right, excellent. Well thank you very much for

that frank disclosure. All nodding I see so there seems to

be consensus that that was the extent of it.

HIS HONOUR: Well now counsel, Mr Wendler, do you want me to

explore it further, is there any special request you have to

make of me?

MR WENDLER: Not really, your Honour, only as to whether or

not, I'm just a little unclear as to whether any of the

members of the jury actually walked from the Empire Hotel to

Campbell Street and had a look at those premises, I'm not

sure about that.

HIS HONOUR: All right, well we'll just ask that. Did anyone

do that, that is, walk out the distance between the hotel

and Campbell Street? No. Anyone? No. All right, no one

seems to have done that."

His Honour then declined the application to discharge the jury. Nothing further seems to have been said of these irregularities until the commencement of the summing up when the learned trial judge said:

"When the trial began, each of you took an oath to well and

truly try in accordance with the evidence and the evidence

as you know very well by now in this case is what you've

seen and heard in this court room and nothing else and your

oath requires you to try it in accordance with the evidence

and the standard direction given to juries is that you

mustn't let anything that you've seen or heard outside the

court room affect that. Well I won't go over that - over

all that again, ladies and gentlemen, you know what I mean

of course."

12. There are several reported cases where irregularities in the form of unauthorised or indiscreet communications between jurors and other persons have been considered. In R v White 1969 (SASR) 491 a brief conversation about the weather was initiated by a juror with Crown counsel. The Full Court of the Supreme Court of South Australia said, at 493:

"We realise that it is of the utmost importance that justice

must not only be done but be seen to be done, and that such

a conversation as deposed to by the juryman could easily

arouse suspicion in anyone who saw it without hearing it,

and particularly in the accused. But now that its innocuous

nature has been made plain it would be utterly unreasonable

for any such suspicion to remain."

The Court declined to quash the conviction. In R v Hodgkinson [1954] VicLawRp 23; (1954) VLR 140, the Full Court of the Supreme Court of Victoria was confronted with a situation where a juror had asked one detective who had given evidence in the case whether another officer, likewise a witness, lived in a certain suburb and had a son called Ian who attended a particular school. The first detective had replied that the second lived in a different suburb, but did have a son called Ian who attended the school in question. Barry J said at 144:

"We must, therefore, make up our own minds whether the

incident was of such a character that, if the verdict is

allowed to stand, justice would not appear to be done or

that the incident was likely to give rise to a reasonable

suspicion concerning the fairness of the trial. We think it

partook of both characters, and that if the trial Judge

possessed the power to do so, it would have been a proper

exercise of discretion to have treated the trial as having

miscarried, and to have discharged the jury. For a

policeman, and a policeman who has himself given evidence,

to speak with the foreman of a jury before verdict is not

only indiscreet, but is calculated to raise suspicion in the

mind of the ordinary bystander. In addition, though the

question asked and answered may have been harmless, it is

possible it may not have been. Sergeant Brown was a

witness, and the foreman's attempt to identify him may not

have been mere idle curiosity. The foreman or some other

member of the jury may well have formed an opinion about the

Sergeant Brown who lived at Bentleigh or Brighton and who

had a son called Ian who attended Melbourne High School that

would influence his belief in the evidence which Sergeant

Brown had given."

13. In R v Twiss (1918) 2 KB 853 where a conversation occurred between a juror and the complainant, Darling J, delivering the judgment of the Court of Appeal, stated the test thus (at 859):

"In those circumstances it is necessary for us to consider

whether what the juryman did was of such a character as to

lead us to think that there may have been an injustice done

to the prisoner."

See also Duff v R [1979] FCA 83; (1979) 39 FLR 315 where the Full Court of the Federal Court dismissed a challenge based on the fact that the trial judge's associate had been approached by a juror at a private social occasion and engaged in an "innocuous" conversation on matters which did not in any way touch upon any of the issues in the trial.

14. In Webb v R (1993 - [1994] HCA 30; 1994) 181 CLR 41 the High Court was concerned with a matter which involved a suggestion of bias on the part of a juror. She had requested, during a trial for murder, that a bunch of flowers be given to the mother of the deceased. The majority of the court did not consider that in the circumstances a fair minded observer would have had any apprehension of lack of impartiality on the part of the juror. The court was unanimous that the test to be applied for determining whether any regular incident involving a juror warrants the discharge of the juror, or in some cases the jury, is whether the incident is such that, notwithstanding any proposed or actual warning of the judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that the juror or jury has not discharged or will not discharge their task impartially.

15. Although there is no room in the present case for any suspicion of impartiality on the part of any of the jury, the irregularities were such that some unauthorised material came into their possession and this gives rise to the question whether the incident affected the fairness of the trial. Even in cases where bias is not alleged, it seems to me to be appropriate that the test laid down in Webb's case (supra) should be followed, namely, would the irregularity, notwithstanding any warning of the judge, give rise to a reasonable apprehension or suspicion on the part of a fair minded and informed member of the public that the juror or the jury has not or will not discharge their task either impartially or fairly to the accused.

16. In the circumstances of this case I am satisfied that the learned trial judge sufficiently impressed upon the jury the necessity to make their judgment on the evidence they had seen and heard in the court and to put out of their minds anything which emanated from another source. In many joint trials evidence inadmissible against one accused but admissible against a co-accused is heard by the jury; but provided clear and explicit instructions are given by the trial judge as to how it may and may not be taken into account, and provided those instructions are reasonably capable of performance, a jury is to be trusted to carry out their obligation. As Neasey J observed in Leaman v R (1987) Tas R 187 (NC 4) (9/1987 at 7):

"If that were not so it would be a serious objection against

the trustworthiness of the jury system as a whole."

Of course, the information procured from the weather bureau should not have been received at all, and the jurors who did so should not have visited the scene and conducted an unauthorised private view. But the instructions of the learned trial judge were reasonably capable of performance and in my opinion the fair minded observer would not, in the circumstances, apprehend or suspect that the jurors would use the knowledge thus obtained in any way adverse to the appellant. In reaching this conclusion I take into account the fact that the general area of the hotel, the streets it abuts and the position of the appellant's premises which were the subject of photographs tendered in evidence and which were also described as being in Campbell Street and "opposite the Campbell Street school" is an area which would be well known to a large number of Hobart residents. It is inconceivable that every member of the jury, unless taken on a view, would have been ignorant of the general topography. There is every likelihood that one or more of the jurors empanelled in this case would at some time during the course of the quite lengthy trial have had occasion to pass through that area and to have a general idea of light conditions during the month of February. Mere knowledge of the area could in no way have prevented the proper discharge by any individual juror of his or her duty to try the case on the evidence. It was not a case where detailed observations were made of distances, or the time necessary to cover them on foot or by car. If those who made the expedition or enquiry of the weather bureau did so in order to evaluate the appellant's response to the suggestion that he might have procured his car from his home and not from a position only 100 metres or so away from the

hotel, I cannot see that it could possibly have availed them in any event, as he conceded it was possible for him to have done so, but asserted that he had not. Likewise, I cannot see how knowledge of the precise time of sunset on or about the date of the offences could have in any way influenced their decision in a way adverse to the appellant. In my opinion, no fair minded and informed member of the public, conscious of the warning given by the trial judge to the jury, could apprehend that the limited knowledge acquired by some of the jurors in the above manner would have had any influence on the fair and impartial discharge of their obligations. No miscarriage of justice has been demonstrated.

17. The defence challenged the competence of the complainant to give evidence on the trial. For the purposes of determining this challenge, the learned trial judge conducted a voir dire before the case was opened to the jury. He ruled that the complainant was competent to give evidence, but later in the trial permitted evidence to be given by a psychiatrist, Dr Sale, tending to suggest that the complainant suffered from a mental disorder rendering his testimony unreliable. This was in accordance with the principle expressed by Brennan J (as he then was) in Bromley v R [1986] HCA 49; (1986) 161 CLR 315 at 322 as follows:

"The admissibility of the evidence of a person suffering

from a mental disorder which affects his capacity to

observe, recollect and express the matters which his

evidence is tendered to prove is a question for the trial

judge: see Sinclair v The King [1946] HCA 55; (1946) 73 CLR 316, at p 333.

Though his evidence is admitted (whether over objection or

not), other evidence showing that his capacity to observe,

to recollect, or to express is impaired by mental disorder

may be called before the jury, for it is relevant to the

weight to be given to his evidence: Toohey v Metropolitan

Police Commissioner (1965) AC 595, at p 608; Reg v Dunning

(1965) Crim LR 372; Wigmore on Evidence, vol 11, par 497(c).

Admission of the impeaching evidence is one of the

recognized exceptions to the general rule against calling

witnesses to contradict a witness on collateral matters:

Archbold, Pleading, Evidence and Practice in Criminal Cases,

42nd ed (1985), par 4.336, p 420."

18. The substance of the evidence of Dr Sale before the jury is to be found in the following extracts of his examination-in-chief:

"Q On the material provided to you were you able to form an

opinion in relation to any possible mental disorder that the

complainant -

HIS HONOUR: No, not any possible disorder. Were you able to

form an opinion that he had any mental disorder?

Q That he had any mental disorder?

A Yes.

Q Now, can you just then identify for us the mental

disorders or disorder that you were able to identify?

A Well the first problem that is evident in (the

complainant) is his problems with alcohol and substances -

HIS HONOUR: I'm sorry to interrupt. It's not responsive.

The question is what mental disorder did you opine he

suffered from on the material you read?

A He suffers from alcohol dependence and poly substance

abuse.

HIS HONOUR: Is that a mental disorder, is it?

A Yes, your Honour.

Q Any other?

A He also suffers from a personality disorder ... A

personality disorder is a - perhaps more like a disability

than an illness. It's a situation where an individual has a

characteristic way of behaving, of responding to situations,

of doing things that is mal-adaptive and causes distress or

disfunction either to themselves and/or others.

Q And other disorders?

A Those are the only disorders I can clearly identify. ...

Q In relation to the substance abuse - did you make some

assessment on the material that you had available to you,

the medical notes and the evidence that (the complainant)

gave in Court, as to the sort of level of ingestion of

substance?

A Well at times he presented to hospitals reporting

prodigious use of substances. There was one occasion, for

example, he presented to a hospital saying that he had taken

fifty Valium tablets during the course of that day in

addition to some alcohol and to some cannabis. There was

another occasion when he presented reporting that he took in

addition to a large amount of wine, ten to fifteen Valium

daily and also some other types of tablets. They're the

only ones I've actually noted down, the actual quantity of

tablets ingested.

Q In your experience, does the ingestion of large quantities

of benzodiazepines, does that affect memory, the ability to

recall?

A It can, it can certainly affect memory, a very common side

effect of benzodiazepine use and especially abuse would be

periods of amnesia during the time when the levels are at

the peak levels in the person's body. ...

Q On the material that you had available to you were you

able to form an opinion as to whether (the complainant) was

a serious or long term user of these substances?

A Yes, the documentation provided to me indicated alcohol

abuse over a period of about fifteen years and

benzodiazepine abuse over a period of about seven years.

Q And in your opinion would that, do you class that as a

long period of use of benzodiazepines?

A Yes.

Q And in your experience have you had occasion when you've

consulted with persons who have had, say up to seven years

use of benzodiazepine or longer?

A Yes, I have seen such individuals.

Q And apart from the problem with memory, is there any other

problems or amnesia was the word you used, were there any

other manifestations that you've noticed through the -

A With benzodiazepine abuse?

Q Yes?

A Well drug seeking behaviour, they all need to, they become

dependent upon the benzodiazepines and they all need to find

ways of maintaining supplies.

Q And are you able to give any examples?

A They may lie to doctors, they may present to doctors

saying perhaps they've lost a prescription or they're

travelling or they may just report that they are very tense

and need help to settle down, that would probably be the

most common way. ...

Q Given the level of information you had concerning (the

complainant's) use of alcohol, did you form the opinion that

he was a heavy user of alcohol?

A Yes, I did.

Q And were you able to form an opinion from that as to

whether his heavy use of alcohol would have had some impact

on his memory and ability to recall?

A All I can say there is that he would be at risk for having

-

HIS HONOUR: The answer is no, is it, you weren't able to

form such an opinion?

A That's right, yes. ...

Q Now the other condition you identified, I think, was

personality disorder and you described in general terms what

that means. Now, what did you rely on in the material that

you were provided with - what did you rely on to form that

opinion?

A That diagnosis was reached on numerous occasions by

several other practitioners. The material that was

contained in the files, in my opinion, was consistent with

that diagnosis.

Q And when you say 'consistent', what, in particular, were

you relying on - any particular examples of behaviour?

A Well, the most frequent - I perhaps better explain that a

personality disorder is often subdivided up into various

types and in (the complainant's) case there were two

particular types that repeated over and over again in the

files - they were the diagnosis of anti-social personality

disorder and the diagnosis of borderline personality

disorder. Sometimes they were given individually and

sometimes in combination and that is permitted in diagnosis.

... A person with an anti-social personality disorder is a

person who habitually deviates from cultural norms regarding

social behaviour such that they frequently have an extensive

criminal record, they frequently have a poor occupational

record, they tend to exploit or to con others, they are

often regarded as deceitful.

Q Now in relation to anti-social personality disorder was it

your opinion that (the complainant) suffered from that

particular condition or disorder?

A I believe that the material contained in the file was

consistent with that diagnosis and therefore would agree

with the people who have made that diagnosis in the past.

Q And in relation to the other condition, borderline

personality disorder, was it your opinion that (the

complainant) suffered from that particular disorder?

A I believe it is probable. In that particular case I

couldn't reach all the criteria required by the DSM4. ...

According to the DSM4 you are required to satisfy five

criteria for the borderline personality disorder. I was

comfortable that there was enough material in the file to

clearly satisfy four of those five criteria. The fact that

it didn't satisfy the others is because I didn't have all

the information that I probably should have. ...

Q Did you say that one of the manifestations of the

borderline personality disorder is a manifestation of

behaviour which is described as deceitful or was that in

relation to the anti - ?

A That's with the anti-social personality disorder.

Q Did you see anything in the literature concerning (the

complainant), concerning that aspect or manifestation of

this condition known as the anti-social personality

disorder?

A Yes, there were concerns expressed in the files about the

reliability, the information that (the complainant) was

providing them. ...

Q If we can just go back to these two conditions, the anti

-social personality disorder, does that, in your opinion,

does that particular condition have any impact or effect on,

in this case, (the complainant's) ability to recall

information or the reliability of the information that he

gives?

A Yes, it does.

Q And what is the effect?

A The effect is that information provided with an individual

who manifests that condition should be regarded with

caution. ... A borderline personality disorder will have no

impact upon memory or reporting. The anti-social

personality disorder will not actually affect the structure

of a person's memory, but it may have an impact on what they

report.

Q What do you mean by that?

A That they are inherently less truthful than the average

person."

19. In the course of the above examination-in-chief, counsel for the defence sought to adduce evidence of other possible conditions from which the complainant might be suffering. The learned trial judge refused to allow him to do so. During the voir dire on the complainant's competence, Dr Sale had revealed that he had not examined him because the complainant had not been made available to him for that purpose. Of course, the complainant was under no obligation to make himself available for that purpose. Dr Sale gave the following evidence on the voir dire of another possible condition or disorder from which the complainant might, in his opinion, be suffering:

"A There were concerns about the effects of such substance

use, particularly chronic alcohol use, it also seemed likely

to me that (the complainant) suffered from a personality

disorder. This was certainly a diagnosis that appeared

repeatedly through the case files - that this was such a

diagnosis. And, finally, there was a pattern in his

hospital admissions and the way he tended to present to

hospitals or other similar services that raised in my mind

the possibility that he may also be manifesting factitious -

a factitious disorder, that is, presenting to hospitals or

agencies raising various complaints, the truth of which may

be open to doubt. ...

Q Now, in the material you had before you, was there some

evidence of what might be described as factitious disorder?

A Yes, the -

Q Well, firstly, if you could just explain what that means?

A It is the presentation with complaints that are not based

in truth but it is different from malingering in that in

malingering the presentation of a false illness or an

exaggerated illness is for some external gain - such as

financial reward. In factitious disorder the individual

presents with false or exaggerated complaints but what they

seek - they seem to be seeking is not any external gains

such as money or drugs but some need to be recognised, some

need to be looked after. Some need for attention. They may

present with physical symptoms or they may present with

psychological symptoms. The most extreme variant of this

pattern of behaviour is known as Munchausen syndrome which

is fairly well known I think.

Q Now if you just stay with that syndrome, can you just tell

us a bit about this syndrome known as Munchausen syndrome?

A Yes, it applies - it is applied to individuals who present

repeatedly to hospitals usually gaining admission, their

complaints are often of a dramatic nature, they often

present as apparent emergencies. They usually present at

hours when the less experienced medical and nursing staff

are around so that they do gain admission. They often tell

unnecessarily elaborate stories about why they are there,

more than is needed for them to gain admission. And it is

for that reason it is called Munchausen syndrome in that

Baron Munchausen was a German raconteur famous for his tall

tales. They often use aliases to gain admission to hospital

because after a while they become recognised at various

hospitals, they present at different hospitals and not tell

hospital number two that they have recently been at hospital

number one. Once in hospital their behaviour is not typical

of what you would expect of a patient, in that they don't

seem to be seeking to alleviate their complaints and their

behaviour is often seen as disruptive or demanding.

Q Are those persons sometimes known as 'hospital hoboes'?

A Yes, that's an old term that was used, yes.

Q Do you see the evidence as to whether or not (the

complainant) displayed the traits of what might be described

as a 'hospital hobo'?

A Well certainly when I look through those medical files

that came to my mind that this might be a case of a man with

a factitious disorder, may be not a full Munchausen in that

there is no use of aliases as far as I am aware, but getting

close to it with repeated hospitalisations. The

hospitalisations tended to be precipitated by dramatic

complaints, almost theatrical at times, and there were

repetitive themes when he would turn up at various places

the themes were of self-injury, by electrical means or

complaints of sexual victimisation either to himself or to

others.

Q And to make sure I understand you Doctor, is one of the

themes that you identified in the hospital notes was one of

those themes this repeated lament by him of being sexually

victimised?

A Yes, or concerns that others had been."

20. This ground of appeal involves a complaint that the defence were erroneously prevented from placing the substance of this material before the jury.

21. It is clear from the statement of principle in Bromley v R (supra) which I have already set out that evidence concerning a witness's reliability or credibility is admitted as an exception to the general rule against calling witnesses to contradict the witness on collateral matters. Brennan J confined his remarks to evidence concerning a witness who was suffering from a mental disorder which affected his capacity to observe, to recollect or to express. In R v Toohey (1965) AC 595 at 608 Lord Pearce, delivering a speech concurred in by all the Lords of Appeal present, said:

"Human evidence shares the frailties of those who give it.

It is subject to many cross-currents such as partiality,

prejudice, self-interest and, above all, imagination and

inaccuracy. Those are matters with which the jury, helped

by cross-examination and common sense, must do their best.

But when a witness through physical (in which I include

mental) disease or abnormality is not capable of giving a

true or reliable account to the jury, it must surely be

allowable for medical science to reveal this vital hidden

fact to them. If a witness purported to give evidence of

something which he believed that he had seen at a distance

of 50 yards, it must surely be possible to call the evidence

of an oculist to the effect that the witness could not

possibly see anything at a greater distance than 20 yards,

or the evidence of a surgeon who had removed a cataract from

which the witness was suffering at the material time and

which would have prevented him from seeing what he thought

he saw. So, too, must it be allowable to call medical

evidence of mental illness which makes a witness incapable

of giving reliable evidence, whether through the existence

of delusions or otherwise."

22. The evidence of Dr Sale given on the voir dire went nowhere near establishing a mental disease or abnormality which deprived the complainant of the capacity to give to the jury a true or reliable account of his dealings with the appellant. The doctor (and no one could criticise him for this), because he was unable to examine the complainant, was unable to express any firm opinion that the complainant suffered a factitious disorder at all. But in any event, such a disorder was not shown to be one depriving the patient of the capacity to recollect or to recount the truth. At best it indicated only that such a person might, for his own ends, distort the truth or tell outright lies. The burden of the doctor's evidence to the jury concerning the complainant's personality disorder was that such a person was unreliable and that his claims ought to be treated with caution. Even if the evidence taken on the voir dire had been admitted, it would have taken the matter no further. The complainant's bizarre background, his encounters with hospital staff in the past, his alcohol and substance abuse, his anti-social antecedents and character were all exposed by cross-examination and production of medical records. There is no complaint (and rightly so) of any inadequacy in the warning given by the learned trial judge in his summing up that the jury should scrutinise the complainant's evidence with great care. In my opinion, the learned trial judge rightly excluded the evidence of any other possible mental conditions or disorders; but even if I am wrong about that, I can see no possible injustice to the appellant in view of what the psychiatrist was permitted to say.

23. About a month after the appellant's trial had been concluded, his solicitor was informed by a member of the police force that there was in existence a written log maintained by the department and which recorded the substance of the call made by the complainant's brother, Scott, shortly after the complainant's arrival at his home at about 4am on 23 February 1994. The operator had recorded that at 4.24am a call had been received from Scott of an address in George Street, North Hobart identifying the victim as the complainant. The operator noted "just arrived at above address, with hands tied behind back, claimed was grabbed about six hours ago by four blokes who had him tied hand and foot". The respondent filed an unchallenged affidavit from one Constable Murnane to the effect that he had made the record in question on computer on 23 February 1994; that the information entered for that incident was his condensation of the conversations that took place between himself and the person reporting, who called himself Scott; and that to the best of his recollection the record accurately reflected the information passed to him in that conversation. Although there is no specific complaint recorded of the assault having any sexual element, certain code numbers used in the computer entry indicate that Constable Murnane categorised the incident under the headings of both assault and rape. It is to be inferred that this information was procured by him from the caller. Scott gave evidence on the trial and said that the complainant, on his arrival, was crying and upset. He told him he had been abducted, bashed and raped. The witness gave no other details of the complaint and confirmed that he had summoned the police by telephone.

24. In Gallagher v R (1985 - [1986] HCA 26; 1986) 160 CLR 392 at 395 - 396 Gibbs CJ said:

"The authorities disclose three main considerations which

will guide a Court of Criminal Appeal in deciding whether a

miscarriage of justice has occurred because evidence now

available was not led at the trial. The first of these,

that the conviction will not usually be set aside if the

evidence relied on could with reasonable diligence have been

produced by the accused at the trial, is satisfied in the

present case, and need not be discussed, although it should

be noted that this is not a universal and inflexible

requirement: the strength of the fresh evidence may in some

cases be such as to justify interference with the verdict,

even though that evidence might have been discovered before

the trial. Two other matters that should be taken into

consideration are whether the evidence is apparently

credible (or at least capable of belief) and whether, if

believed, the evidence might reasonably have led the jury to

return a different verdict. Although I have stated the

matters in that way, it will be seen that there has been

some difference of expression, if not of opinion, in the

judicial discussion of these questions. The combined effect

of the two considerations was stated by Rich and Dixon JJ in

Craig v The King [1933] HCA 41; (1933) 49 CLR 429, at p 439, as follows:

'A Court of Criminal Appeal has thrown upon it some

responsibility of examining the probative value of the fresh

evidence. It cannot be said that a miscarriage has occurred

unless the fresh evidence has cogency and plausibility as

well as relevancy. The fresh evidence must, we think, be of

such a character that, if considered in combination with the

evidence already given upon the trial the result ought in

the minds of reasonable men to be affected. Such evidence

should be calculated at least to remove the certainty of the

prisoner's guilt which the former evidence produced. But in

judging of the weight of the fresh testimony the probative

force and the nature of the evidence already adduced at the

trial must be a matter of great importance.'

Perhaps no more elaborate statement of the position can

usefully be made."

25. In respect of the first consideration, I am satisfied that the material sought to be relied upon was not available to the defence at the time of the trial and it could not be said that it could with reasonable diligence have been produced thereat. My concern is whether the appellant has satisfied the other requirements. Gibbs CJ at 399, speaking of the differences of expression in the judicial discussion of them, said:

"No test can detract from the force of the fundamental

principle that the appeal must be allowed if a miscarriage

of justice is shown to have occurred. It is only a

practical guide to the application of that principle to say

that the court will grant a new trial if, having approached

the matter with the caution that is always demanded when

fresh evidence is produced in a criminal case, and having

weighed the credibility of the fresh evidence and considered

its cogency in the light of the evidence given at the trial,

it considers that a jury might reasonably have reached a

different verdict if the evidence had been available at the

trial."

Mason and Deane JJ in their joint judgment, after referring to the formulation cited above by Gibbs CJ in Craig v R (supra), referred as well to that contained in the judgment of Barwick CJ (with whom McTiernan, Stephen and Jacobs JJ concurred) in Ratten v R [1974] HCA 35; (1974) 131 CLR 510 at 519, 520:

"In this situation, the court must as before decide the

credibility and the cogency of the fresh evidence in order

to determine whether, when the fresh evidence, if believed

by the jury, is taken with the evidence given at the trial

in that sense most favourable to the accused which

reasonable men might properly accept, it is likely that a

verdict of guilty would not have been returned. In

considering the material before it for this purpose, the

element of credibility will be satisfied if the court is of

opinion that the evidence is capable of belief and likely to

be believed by a jury. The court in this instance will not

be directly acting upon its own view of the evidence but

rather upon that view most favourable to an appellant, which

in the court's view a jury of reasonable men may properly

take. ... if there is fresh evidence which in the court's

view is properly capable of acceptance and likely to be

accepted by a jury, and which is so cogent in the opinion of

the court that, being believed, it is likely to produce a

different verdict, a new trial will be ordered as a remedy

for the miscarriage which has occurred because of the

absence at the trial of the fresh evidence."

26. In Winslett v R (1992) 60 SASR 1 Duggan J (with whom Legoe and Mohr JJ agreed) referred to the different formulations of the test, noting (at 3 - 4):

"In Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259, Mason CJ (at

274. said the proper question is 'whether the court

considers that there is a significant possibility that the

jury, acting reasonably, would have acquitted the appellant

had the fresh evidence been before it at the trial'. The

learned Chief Justice stated that this was the view of four

of the five Justices in Gallagher. In his judgment in

Mickelberg (supra) Brennan J said (at 275):

'The formulation which, in my respectful opinion, was

settled by this Court in Ratten v The Queen (1974) 131 CLR

510 at 519, 528, and in Lawless v The Queen (1979) 142 CLR

659 at 666, 670, 677, 686, is whether the jury, if the fresh

evidence had been laid before it together with the evidence

given at the trial, would have been likely to have

entertained a reasonable doubt about the guilt of the

accused. That was the formulation to which I adhered in

Gallagher at 409-410. The test has sometimes been expressed

not in terms of "likely" but in terms of "might" (Stafford v

Director of Public Prosecutions (1974) AC 878 at 893, 907,

912; Gallagher at 399, 421) or in terms of "significant

possibility" (Gallagher at 402). Although I agree with

Toohey and Gaudron JJ that it is not necessary to elaborate

in this case upon the differing nuances of these formulae or

to decide between them, my preference for the "likely"

formula remains.'

Deane J favoured the 'significant possibility' test. Toohey

and Gaudron JJ did not express a preference for one test

over another in their joint judgment.

There is much to be said, with respect, for the view

expressed by King CJ in R v McIntee (1985) 38 SASR 432 at

435 that:

'The rules relating to fresh evidence, like all rules of

law, should be applied so as to serve and not to frustrate

the interests of justice. I have no doubt that appellate

courts will always receive fresh evidence if it can be

clearly shown that failure to receive such evidence might

have the result that an unjust conviction or an unjust

sentence is permitted to stand.'

This statement was adopted by Gibbs CJ in Gallagher at 395."

27. In respect of the plausibility of this evidence, I think it can be said that it was capable of extracting an admission from Scott that his brother had complained to him of being attacked by four men or, had he disputed it and had it been proved under the Evidence Act 1910, s81L, capable of persuading the jury that that was the nature of the first complaint. On the other hand, depending on any explanations offered by Constable Murnane, Scott or the complainant, they might have been unpersuaded that the complainant had made such a statement inconsistent with the account he gave the police later that morning and with his evidence on the trial. There is potential for some misunderstanding between the two brothers having regard to the complainant's state, or between Scott and the police operator. In view of the fact that the complainant referred to his assailants variously as "Tom", "Frank", "the gentleman" and "the animal", "Tom" being "the gentleman" and "Frank" "the animal", it is possible, if he used that method of describing them, for his brother to have understood him to be referring to four men and not two. Nevertheless, even if one accepts that the defence was deprived of the opportunity of tendering plausible evidence proving or suggestive of a prior inconsistent statement by the complainant on the issue of how many persons had attacked him, the evidence, in my opinion, fails the test of cogency.

28. Notwithstanding that the Evidence Act 1910, s81L might make the statement recorded by Constable Murnane admissible as evidence of the fact that Scott had told him the details recorded and had in turn been told them by the complainant, or that if such a statement to his brother was denied by the complainant but proved by Scott to have been made by him, s81L would make the complainant's statement admissible as evidence of its truth, the admission of the fresh evidence cannot realistically be regarded as advancing anything but the appellant's already strong attack on the complainant's credibility. It is, I suggest, unrealistic to suppose it would have induced any acceptance by the jury of the possibility that the complainant had, after leaving the appellant's premises, been set upon by four men, other than the appellant, and sexually abused by them. Having regard to the evidence given on the trial including, in particular, that relating to the fact that the complainant's hands were still tied at 4am with a necktie which the jury had strong reason to find came from the appellant's home, I think it is inconceivable that such a hypothesis would have been regarded by the jury as a reasonable one, even given the admission of the evidence of the inconsistent statement of the complainant. The effect of that statement could not reasonably have been expected to impact on the jury as anything other than a further reason for regarding the complainant's evidence as lacking in credibility. As I have said, there had been a powerful attack already on his credit and one which, in the circumstances, had rightly attracted the kind of warning recognised as necessary by the High Court in Bromley v R (supra). The jury were well aware of his previous convictions, his antecedents, his previous admitted lies, his alcohol and substance abuse, his visits to psychiatric and

detoxification units and his complaints of previous sexual assaults, including, in particular, one alleged to have taken place about seventeen years previously in circumstances remarkably similar to the present. They had been warned to scrutinise his evidence with great care before convicting. They did not, in fact, convict on any counts proof of which required a finding of the commission of a crime by the third man referred to as "Frank" or "the animal". There was no corroborative evidence in respect of such counts - no corroborative evidence even of the existence, let alone presence, of that person; but as there was, in my view, significant corroborative evidence in the form of the tie which linked the appellant to the complainant not only earlier in the evening but up until shortly before the complainant's arrival at his brother's home with his hands bound, it seems likely that the jury were fully alive to the deficiencies in the complainant's credibility and were only prepared to convict where his evidence was in fact corroborated. In these circumstances the prior inconsistency, if accepted as such by the jury, is extremely unlikely, in my view, to have had any further effect on their assessment of him. Whichever formulation of the test one uses, in my opinion there is little likelihood that any different conclusion would have been reached by the jury if the fresh evidence had been admitted on the trial. I am quite unpersuaded a miscarriage of justice has occurred because of the absence at the trial of this evidence.

29. This ground complains of a direction by the learned trial judge in his summing up. Transcription of his comment is a little corrupt, but it seems clear that what he said was:

"... Dr Sale's opinion really does not count for anything

because he did not get to the stage of diagnosing an actual

medical condition which would be BEYOND your experience and

mine."

"Well now I just mention briefly the medical evidence and

remind you, as I think Mr Wendler correctly told you, and I

mention to you that it is up to you whether you accept

expert opinion evidence or not. The rule of evidence is

that generally witnesses can only tell juries what they

perceive with one of their senses, it is something they see

or hear or touch or smell and so on, and it is up to the

jury to draw what inferences they think are appropriate from

that. But sometimes ordinary human experience is not

sufficient to understand the evidence so where we move into

the realm of expert testimony such as medical testimony the

witnesses are allowed to give their opinion of matters

within their expertise and that is why you got opinions from

these Doctors you see but you could not get opinions from

others and that is why Dr Sale's opinion really does not

count for anything because he did not get to the stage of

diagnosing an actual medical condition which would be beyond

your experience and mine."

30. The complaint is that the effect of his Honour's comment was to make a value judgment of Dr Sale's evidence depriving it of any weight at all. I do not think there is any substance in this complaint. His Honour was entitled to comment on the evidence. He had earlier in the summing up said:

"Doctor Sale told you that he's got these personality

disorders but he was quite clear that he had no opinion that

he had a psychiatric condition that affected his capacity to

recall events and recount them to you."

He had reminded them of the evidence of the complainant's alcohol and drug abuse, his antecedents, attempts to commit suicide in bizarre circumstances, his lies and hallucinations, and had impressed upon them the risk of unreliability and the consequent need for careful scrutiny of the complainant's evidence. In truth, the psychiatrist's evidence which I have cited above in respect of ground 7 did not take the matter any further than would be within the range of the average juror's knowledge and experience. I would dismiss the appeal against conviction.

31. The applicant seeks leave to appeal against the sentence of eight years' imprisonment imposed upon him on the ground that it is manifestly excessive. In sentencing him for the crimes of assault, aggravated sexual assault and four counts of rape, his Honour said:

"The commission of these crimes can properly be categorised

as violent acts of extreme depravity. Consistent with the

verdicts of the jury, I find that you were well aware of the

presence of your victim when you were both in the bar of the

Empire hotel and well aware that he was very badly affected

by liquor. I also find that you later learnt that he had

fallen senseless outside the hotel and you then decided to

prey upon his body to satisfy a violent sexual lust.

Under the guise of taking care of him, you assumed dominance

and complete control over the complainant when he was unable

to look after himself by placing him in your car and driving

him to your home. Once there, you manoeuvred him upstairs

into your bedroom and ensured his continued subservience by

binding his hands together with a necktie. Without any

consideration for your victim's feelings or dignity, you

proceeded to anally assault him and then anally rape him on

4 separate occasions over a period of some hours. During

that time I find that you plied this already very drunk man

with even more liquor, no doubt to enable you to use him at

your will. The final callous indignity of the night was to

turn him loose in a street in North Hobart with his hands

still bound to find help as best he could.

At the time of the commission of these crimes you were an

ordained priest of the Anglican Church. Although that may

be a matter for your conscience, it is not a circumstance of

aggravation in the sentencing process for you were not

purporting to act in your vocation at the relevant time.

The crimes of which you have been convicted are crimes of

sexual power and violence. It is the manner in which you

selected and then used and abused your helpless victim that

makes your criminal conduct so heinous. There is nothing in

your personal circumstances and background, nor in the

circumstances surrounding the commission of the crime to

explain your evil behaviour or to mitigate against penalty.

Sentence must serve to punish, to deter and to mark informed

and quite proper community outrage over the commission of

these crimes."

32. Although some criticisms were made at the hearing of the appeal of specific findings made by his Honour, they were abandoned. The applicant was 46 years of age, had been a priest for a significant number of years, had worked in specialist social welfare areas for a significant period of time and had, since being charged with these offences, suffered ostracism, ridicule and abuse in the eighteen months preceding his trial. He had no previous similar convictions, but had been convicted on three previous occasions for offences against the Road Safety (Alcohol and Drugs) Act 1970. His future prospects within the church ministry upon release from the custodial sentence which was inevitable would be bleak, if not non-existent.

33. The sentence of eight years' imprisonment on such an offender is a very severe one; but on the other hand the nature of the offence was very grave, the outrage in the community it excited understandable, and the need to deter others like minded by condign punishment manifest. The victim was one of society's casualties. The Victim Impact Statement by Dr Lopes and not challenged by the applicant's counsel concluded with this opinion:

"I would regard (the complainant) as a man of borderline

intelligence, who came from a rather chaotic family

background (eight children from 3 different fathers) and

both parents regarded as alcoholics and has a history of

neglect. He was also educationally backward and somewhat a

loner with no close friends. He is very unsophisticated.

His problem was exacerbated when he started drinking at an

early age which escalated when he was assaulted the first

time at 17 - 18.

Following his recent assault his mental condition has

deteriorated and appears to be compounded by the exhaustive

stress of trial process and adverse publicity in the papers.

The effect of the ordeal of finding himself tied and raped

and fear for his life fit in classically with a Stressor to

make up a diagnosis of Post Traumatic Stress Disorder.

Given his past history of emotional lability there is a very

substantial risk of suicide and he needs to be referred for

expert help promptly. The prognosis is uncertain."

34. The offence itself involved the applicant in an abuse of trust, not in the sense that he misused his position as a member of the clergy to ensnare the victim, but in the sense that the latter being in such a drunken condition that he was unable to take care of himself, the applicant took him out of the protective concern of the three women who found him outside the hotel, placed him in his own charge, ostensibly to protect him, but instead of doing so, subjected him to a series of depraved and degrading acts extending over a period of about eight hours. The complainant was rendered helpless by having his hands tied behind his back, he was stripped, sexually assaulted several times, plied with alcohol to reduce his capacity to resist, and finally dumped in the street with his hands still tied and his head covered by a pillow case. Given his vulnerable nature and background, it is not surprising that the impact this experience had upon him was very severe. He was not spared the distress of recounting it by the applicant's exercise of his right to a trial and the applicant at no stage showed any contrition or remorse for the deeds which the jury were satisfied he had committed. The applicant could expect no leniency on the score of consideration for the complainant or of remorse.

35. In Bowden v R (1968) Tas SR 192 (NC 15) 46/1968, the Court of Criminal Appeal upheld a sentence of eight years' imprisonment imposed for a single count of rape. Burbury CJ said:

"There are some crimes which irrespective of the youth and

previous good character of the offender must be visited with

a long gaol sentence, and rape is one of them. The crime of

rape is always serious but like every other crime varies in

seriousness according to the circumstances of the particular

case. Something has been said about standardisation by

counsel for the applicant. Standardisation is impossible.

It has been emphasised, both in England and in New South

Wales by the Courts in recent times that in considering the

appropriate sentence for a crime of violence of this kind,

the sense of public outrage as to such actions cannot and

ought not to be left out of account. It is not a simple

matter of looking at questions of deterrence and reform. In

fact sentences for the crime of rape have been considerably

higher in England and in other States of Australia than in

Tasmania. In New South Wales the maximum sentence for rape

is life, and I believe it is the same situation in

Queensland, and very long sentences have in fact been

imposed."

36. His Honour regarded that as a bad case of rape in which the applicant had threatened an innocent fourteen year old schoolgirl with a knife and had raped her with callous brutality. No remorse was expressed by Bowden and psychiatrists said that they feared he might offend again. Burbury CJ said that the learned sentencing judge in those circumstances "took into account not only the seriousness of the crime itself, but he also took into account the question of personal deterrence as a very important one. His sentence in one sense ought I think to be regarded as a preventive detention."

37. Professor Warner in her book, Sentencing in Tasmania, notes in par12.506 that in the period 1978 - 1989 sentences of seven years were the highest imposed for one count of rape. In par12.507 she notes that global sentences for multiple counts of rape and rape and other offences were, on one occasion, as high as twenty years and fourteen years in respect of two joint offenders for a particularly atrocious course of conduct including abduction, aggravated burglary, causing grievous bodily harm, indecent assault and rape (Watson and Curtis, 2 December 1986). The vast majority of multiple counts did not attract sentences exceeding seven years and multiple counts of rape committed in company ("pack rape") attracted sentences of five to seven years.

38. Convictions for homosexual rape in this State are not frequent. In 1975 Neasey J imposed sentences totalling two years on a prisoner who, without his consent, sodomised a fellow prisoner on two occasions in the gaol (Gill, 11 April 1975). In Carter's Australian Sentencing Digest (LBC 1985), s407, a number of cases of "prison rape" and other non-consensual anal penetrations are noted in which head sentences of eight years or more have been imposed (Clark and Cathro - 407.01.N1 - fifteen years and eleven years; Glasby and Hines - 407.01.N2 - eight years and seven years; George and Price - 407.01.N6 - eight years and six years; Priestly - 407.01.N7 - eight years; Stevens - 407.01.N8 - fourteen years; Cruse - 407.01.N13 - eight years; Riley - 407.01.V3 - seven years; Yule - 407.01.V4 - seven years; Shores - 407.01.V6 - thirteen years and six months).

39. In the present case, although little physical injury was done to the complainant, he was bound and held captive for a lengthy period of time during which anal penetration, in addition to other indignities, was inflicted on four occasions and severe emotional distress and embarrassment was caused. Nevertheless, unlike the case of Bowden where a sentence in the nature of preventive detention was imposed because of the risk that he might commit further offences, there is no reason to suspect that the applicant would only be deterred from repetition by a very lengthy sentence. In respect of the severe sentences for prison rape, the Court of Criminal Appeal in New South Wales placed emphasis on the need for a strong deterrent to protect prisoners from other predatory prisoners confined in the same cell (see Glasby and Hines (supra) and George and Price also reported at (1981) 4 A Crim R 12). The same emphasis was expressed in the South Australian prison rape case of Fern (1989) 51 SASR 273 where a sentence of twelve years' imprisonment was reduced to one of eight years' imprisonment. Grave though the applicant's conduct was, I think having regard to the pattern of sentencing for cases of heterosexual rape and to the reasons for distinguishing the need for the same severity as is exhibited by the prison rape cases referred to by Carter (supra), a sentence of eight years' imprisonment in the circumstances of this case was unnecessarily severe and can fairly be described as manifestly excessive. I would grant leave to appeal and substitute a sentence of six years' imprisonment on the indictment.

WRIGHT J I have had the advantage of reading the reasons for judgment prepared by Cox CJ and Slicer J. As to grounds of appeal 1 and 6, I agree with both my learned brethren. As to grounds 4 and 5, I agree with my learned brother Slicer. As to grounds 7 and 8, I agree with my learned brother the Chief Justice. As to ground 9, I agree with the learned Chief Justice and wish to add the following brief comments of my own.

2. The general rule is that independent evidence relating solely to a witness's credibility cannot be called in a criminal trial. The witness's reliability or unreliability must be exposed, if at all, by cross-examination, prior inconsistent statements or contradictory evidence from other sources. However, if there is objective material from which it may be concluded that a witness has an identifiable mental disease or disability which is of such a kind that the witness is likely to tell untruths or be unreliable upon his oath by reason of his being incapable of distinguishing fact from fiction, such an opinion may be expressed by a competent expert.

3. If the material is equivocal, eg, if the diagnosis necessarily depends upon the untruthfulness of something which the relevant witness has said on a past occasion and it has not been affirmatively shown that such statement is false, then the foundation for the expression of an opinion is destroyed. This would appear to be the reason why Dr Sale declined to express an opinion that the complainant was suffering from a factitious condition or had an inherent tendency to confabulate. The witness's credibility in relation to those features of his medical history which may have suggested such a tendency, were thoroughly explored in cross-examination before the jury, but there was no permissible basis upon which Dr Sale could have been asked to express his opinion as to the truth or otherwise of complaints made or facts stated by the complainant to other medical practitioners and hospital staff on past occasions.

4. A possible alternative approach available to the defence may have been to ask Dr Sale as to specific medical conditions and their symptoms without relating such symptoms directly to the complainant but it may be doubted whether Dr Sale would have been permitted to follow such a course in light of the views expressed by the Court of Criminal Appeal in Ingles v R A28/1993 (unreported, available on SCALE) and the views expressed by the learned trial judge on the voir dire as to the complainant's competence to testify. An obvious danger in permitting him to do so would be that, although he felt unable to make an affirmative diagnosis in respect of the complainant, the jury would, in effect, be asked to make such a diagnosis themselves. Perhaps a proper cross-examination of Dr Sale would have tended to neutralise the effect of any such evidence because the doctor would have had to acknowledge that the information he had relevant to the witness possibly suffering from such a condition was too equivocal for a firm diagnosis to be pronounced but the risk of the jury using such evidence in an impermissible way would still remain.

5. This does not mean that the defence was unfairly restricted in attempting to achieve its obvious purpose of totally discrediting the complainant's evidence. His tendency to lie and his bizarre behaviour in the past was amply exposed by the medical history which was placed in evidence and his own concessions in cross-examination in relation to his previous dealings with medical practitioners and others. On the basis of that material, the jury was obviously in a position to determine that he was manipulative and had a significant tendency to lie about important matters. If they reached such a conclusion, and it is inconceivable to me that they did not, they would plainly have treated the complainant's testimony with the utmost caution, whether or not they were given an appropriate warning by the learned trial judge.

6. I turn therefore to consider the direction complained of in ground 9 of the appeal. It must be stated at once that the direction was both incomplete and ambiguous. It is not immediately clear whether his Honour was purporting to comment upon a matter of fact or was giving the jury a direction in law to the effect that Dr Sale's opinion was of no evidentiary value and should therefore be ignored. But, before reaching a view as to which, if either, of these assessments is correct, it is necessary to consider the evidence which was in fact given by Dr Sale and the course which the trial took.

7. Dr Sale gave evidence that he was of opinion that the complainant suffered from both an anti-social personality disorder and a borderline personality disorder and that, in addition, he suffered from alcohol dependence and poly-substance abuse. It must at once be doubted that his Honour intended, or would be understood by the jury, to have intended by his impugned direction, to suggest that these diagnostic opinions could or should be ignored. I say this because there was no challenge to this part of Dr Sale's evidence by Crown counsel, nor were there any questions raised at any stage of proceedings tending to suggest that these diagnoses were untenable.

8. Dr Sale found himself unable to express an opinion as to whether or not the complainant's alcohol and substance abuse had actually impaired his memory or ability to recall events. The closest he got to expressing an opinion upon this was in cross-examination when he said that the use of alcohol and drugs "may" cause amnesia in respect of particular events and that long term abuse "could" cause persistent defects in short term memory. In relation to the personality disorders, Dr Sale said as follows:

"A person with a borderline personality disorder

characteristically has stormy relationships and stormy moods

and they are usually impulsive and they are frequently

attempting suicide or threatening suicide."

"A person with an anti-social personality disorder is a

person who habitually deviates from cultural norms regarding

social behaviour such that they frequently have an extensive

criminal record, they frequently have a poor occupational

record, they tend to exploit or to 'con' others, they are

often regarded as deceitful."

Dr Sale made it clear however that he could not say that the complainant was deceitful. In respect of neither of the personality disorders did Dr Sale express the view that a sufferer would certainly or probably have some form of memory impairment or some inherent tendency to confabulate. He said:

"A borderline personality disorder will have no impact upon

memory or reporting. The anti-social personality disorder

will not actually affect the structure of a person's memory

but it may have an impact on what they report. ... (because)

they are inherently less truthful than the average person."

9. With the assistance of these views expressed by Dr Sale, together with the admissions as to past conduct and character made by the complainant in the witness box, the jury may well have concluded that, in the absence of corroboration, the evidence of the complainant should be regarded with the gravest possible suspicion and circumspection. If the jury had been left with no material upon which it could be satisfied that the complainant was unreliable and given to lies and fabrication other than the opinion of Dr Sale, the unfortunately worded direction by the learned trial judge in saying what he did in the passage complained of may have been of considerable significance and may have justified the conclusion that there had been a miscarriage of justice. But within the context of the other material before the Court, including the complainant's concessions in cross-examination as to his past character and behaviour, coupled with his Honour's clear warning in which he told the jury of the risks involved in relying upon the complainant's unsubstantiated version of events, and the reasons why such dangers existed, much, if not all, of the potential damage emanating from this short and non specific direction as to Dr Sale's opinion, would have been nullified.

10. If, during the course of the trial, Dr Sale had expressed an opinion as to the veracity of the complainant in respect of the matters before the Court, and if the learned trial judge's direction to the jury could have been interpreted as relating only to that particular opinion, obviously no harm would have come from his Honour's comment indeed the comment would have been entirely appropriate. However, Dr Sale expressed no such opinion and accordingly the correctness or otherwise of the direction does not arise in this context.

11. It may be argued that the jury would have been puzzled or confused by his Honour's direction and that, as I have already said, some may have taken it to be a direction in law. It was certainly a direction touching upon the very essence of the case. The credibility of the complainant was of crucial importance, but it seems to me that before one can see whether any real problem arose from the direction complained of, one must read it in the context both of the trial and the summing up as a whole. It would have been plain to the jury from what his Honour said whilst Dr Sale was in the witness box that the doctor was being very carefully confined by the trial judge as to the opinions which he could or could not express and that, insofar as he had formed an opinion as to the complainant's credibility as to the events of the evening in question, he was being precluded from expressing such an opinion. Then, during the summing up, his Honour, when dealing with Dr Sale's evidence in relation to the complainant's reliability, said this:

"But apart from evidence of bad character you must of course

exercise some special care when considering (the

complainant's) evidence. Because there are aspects in his

background that may, and there's that word again, because

it's for you, may make his evidence unreliable. Now I'm not

suggesting to you that you should think that his evidence is

unreliable and I'm not suggesting to you that you should

think it is reliable, that's your decision, but the law

requires me to warn you about the need to look with extra

care at (the complainant's) evidence. Doctor Sale told you

that he's got these personality disorders but he was quite

clear that he had no opinion that he had a psychiatric

condition that affected his capacity to recall events and

recount them to you. And although Mr Wendler referred to

this evidence at some length and said about it, in effect,

you must be careful when you assess his reliability, I

direct you in this way that you must take that care but not

because of what Doctor Sale said, juries only need evidence

from psychiatrists when they have got information and

opinions about people's mental health that ordinary folk

like you and I would not be able to form, that's when we

need psychiatric help, and Doctor Sale didn't have any of

those opinions about this man. He knew what we all know,

that he's alcoholic, he said that himself, that he's

addicted to these prescription drugs, he said that himself,

he's got a turbulent history, he's been admitted to

hospitals here and Victoria, he's attempted to commit

suicide. You remember he gave you a bit of detail about all

of that. In Victoria, when he tried to electrocute himself,

and he's lied to doctors, as I say, he's had hallucinations

and we all know that if somebody with that sort of

background tells you something happened you need to

scrutinise it with extra care. That's what I'm telling you

about (the complainant's) evidence, because of that

background history you need to scrutinise it with care

before you accept it. It's an ordinary proposition, of

course. It was plainly put to you on behalf of the defence

that by reason of his history you couldn't put any faith in

what (the complainant) said, in fact he made up the whole

account in order to draw attention to himself or get a

drink. Well, you will have to assess that. It would be

wrong to write off somebody of no account just because

they're alcoholic and addicted to drugs and with this kind

of background, it would be quite wrong to say 'Well anything

you say to us ever again we'll never believe you.' On the

other hand, it would be quite wrong and certainly unfair to

the accused with respect to such a person to say 'Oh well, I

believe everything you tell me, no question. It's just as

if the Commissioner of Police had told me himself', as it

were, to pick him at random. So it would be wrong either

way, and all you do is apply your common sense and look at

the other evidence, the outside evidence. No doubt Miss

Boyd's evidence, coupled with Doctor Lawrence, of the semen

in the anus is a relevant matter for you to consider when

carefully weighing his testimony, and the tie, as I've

mentioned, and so on, all of those factors you will consider

because you will say to yourselves, and this is really my

direction, because of (the complainant's) history, which has

been detailed to you, there's a real risk that his evidence

might be unreliable and we must be careful to take into

account that risk, extra in his case, over and above

ordinary witnesses, when we are considering his evidence."

12. I have reproduced this segment of his Honour's directions in full because it reminds the jury of the limitations which were placed upon Dr Sale's expression of opinion in relation to the existence or non-existence of a medical condition which might affect the complainant's capacity to recall or recount his experiences truthfully. Taken out of context, his Honour's later direction, identified in this ground of appeal, could be taken as a direction to the jury that they could or should ignore any opinion expressed by Dr Sale during the course of his evidence. However, as illustrated by the above quoted part of his Honour's direction, no question of his diagnostic opinions was raised, and as other views which Dr Sale had expressed had not been challenged by the prosecution or queried by his Honour, it would be highly unlikely, in my view, that any juror would have interpreted his Honour's direction as doing more than explaining once again why Dr Sale's personal opinion, if any, as to the truthfulness of the complainant in respect of any particular event or any particular occasion, was not of significance in the trial. It is of interest to note that his Honour used a very similar expression in relation to his own views and the views of counsel at the commencement of his summing up when he said:

"... In the course of this summing up I may express some

opinion myself about the evidence or you may think I am

expressing some opinion about it; that's part of the trial

judge's function, but my opinion counts for nought against

yours so far as the facts are concerned. My opinion carries

as much weight as the opinions and comments of counsel.

It's for you, ladies and gentlemen, from the whole of the

evidence to decide what you say occurred."

13. For these reasons I have formed the opinion that, although his Honour incompletely and inaccurately expressed himself in the sentence complained of, that misdirection, if indeed it can be considered a misdirection, and, regardless of whether it may have been seen by the jury as a direction of law or a comment on fact, did not give rise to the possibility that the appellant lost an opportunity of acquittal which otherwise may have been reasonably open to him.

14. As to the application for leave to appeal against sentence contained in ground 10, the learned Chief Justice has set forth most of the relevant considerations and has concluded that a sentence of eight years' imprisonment was manifestly excessive. There is a wide discretion available to sentencing judges. In respect of all crimes, views will differ to some degree and mere disagreement with a particular sentence does not necessarily mean that it should be overturned. A review of sentences actually imposed for rape in this State over the last few years, suggests that there may be some disparity in the approach adopted by individual members of the Court. All judges seem to be united in the view that rape is an abhorrent offence, deserving condign custodial punishment in all but the rarest cases. However, from the actual spread of sentences it can be seen that individual assessments of the appropriate duration of a prison term can differ quite significantly when similar cases involving different judges are compared. No doubt this is due, in part at least, to the substantial variety of factors which may be taken into account in the sentencing process and the different values which may be fairly and properly placed upon each such factor, but I think that there are also different perceptions by individual judges, both as to the appropriate range and the allocation of an appropriate custodial element to the important aspects of general deterrence and public denunciation. The crime of rape is a distressingly prevalent offence and deserves severe punishment. It invariably causes great trauma to the victim and such trauma often persists for many years. It can effectively shatter lives and relationships. The predatory rape of a stranger is particularly outrageous and, in a sense, no custodial punishment can be too severe. Rapists sometimes re-offend, even after a lengthy period of incarceration. Many women, perceiving the possibility of sexual assault as a constant threat, live with a sense of insecurity and apprehension, even in their own homes. The community has a right to demand and expect condign retribution. The court has a clear duty to do all that is within its power to prevent crimes of this kind but, at the same time, it must not let anger and revulsion cause an over reaction or a tendency to lose a proper sense of proportion between sexual offences and other violent crime. Whilst we do not hear of many cases of homosexual rape involving an adult male victim, such cases should not be placed in a special category. Whether the victim of a rape is male or female is, of itself, unimportant.

15. In considering the present application it appears to me there are two important factors to consider in evaluating the length of the applicant's sentence. In the first place the prisoner has no prior relevant convictions. It is important to bear this in mind because a first offender, no matter how grave his crime, usually requires a shorter sentence to deter him than does a recidivist. In the second place, although separate crimes of considerable gravity were committed, they were all accomplished on a single occasion, albeit that that occasion extended over a period of some hours. A perusal of available data bases will show that many of the lengthy sentences for rape have been imposed in respect of multiple offences of child rape occurring on separate occasions over a lengthy period of weeks, months, or even years.

16. I think if I had been dealing with this case at first instance I may have imposed a slightly shorter sentence than did the learned trial judge. It is likely that I would have considered seven years sufficient. But to interfere with the sentence on appeal so as to reduce it by a factor of twelve and a half per cent, appears to me to be "tinkering" with the result when I have not been persuaded that the sentence actually imposed was grossly disproportionate to the crimes which were committed. I cannot say the sentence was manifestly excessive.

17. Accordingly, I would dismiss the appeal and refuse the application for leave to appeal against sentence.

SLICER J The appellant was convicted of the crimes of rape, aggravated sexual assault and assault contrary to the Criminal Code, ss185, 127A and 184. He was acquitted of other crimes alleged to have been committed during the course of the evening of 23 February 1994. He has appealed against conviction on the grounds of wrongful reception of evidence, failure of an adequate direction to the jury, failure to discharge the jury, unsafe verdict and further contends that evidence obtained since conviction warrants the setting aside of the verdict.

2. On the evening of 22 February, the appellant was present in a suburban hotel, at the same time as the male complainant. The complainant, who was inebriated, left the hotel was seen by others to be in difficulty and assisted from a position of potential danger. The appellant proffered assistance to the complainant, who was placed in the appellant's motor vehicle and driven away from the hotel. In the early hours of 23 February the complainant appeared at the home of his brother, who resided in the same neighbourhood as the hotel and the home of the appellant. Police were notified and the complainant was taken to hospital and medically examined. The complainant alleged that, during the course of the previous evening, he had been repeatedly assaulted and raped by two men (known only to him as Tom and Frank or "the animal") at an unknown residence and manacled and hooded, was taken by motor vehicle and left in a street in North Hobart from whence he had made his way to the home of his brother. The appellant was interviewed by police and whilst admitting that he had taken the complainant to his home, denied any criminal conduct. He maintained that he had observed the complainant in difficulty and had assisted the man until he was in a condition in which he could be safely returned to the general area from whence he had come.

3. There was no issue that the complainant, in an intoxicated state, had left with the appellant from near the hotel. What was in issue was the conduct of the appellant whilst in the presence of the complainant. Separate, but not inconsistent, approaches were taken by the defence. The first was that the complainant's version was false in its entirety, induced by mendacity and the prolonged effects of substance abuse and earlier trauma. The second was that, if the general account was true, it related to events which occurred after the appellant's involvement with the complainant. Central to both questions was the veracity of the complainant and the reliability of his memory.

4. The complainant was unable to identify the appellant as one of his assailants. The evidence established that at about 7.40pm, three women saw the complainant sitting on the side of Burnett Street near the Empire Hotel. The appellant, who had previously been inside the hotel, appeared and, with the assistance of others, placed the complainant in his vehicle. The complainant claimed that he remained at the residence, where the assaults occurred, for about six hours. After the attack, he claimed to have been placed in a vehicle with his hands tied behind his back with a hood placed over his head before being driven by the two assailants and left in Elizabeth Street. There he claimed to have removed his hood and, still shackled, walked to his half-brother's home which was nearby, where he dropped the hood in the yard of the house and, finding his half-brother to be absent, walked some little distance to his brother's residence in George Street.

5. The brother, Scott, said that he was awakened about 4am and found his brother with his hands bound with a necktie. The complainant appeared to be upset and stated that he had been "abducted bashed and raped". Police officers arrived at the residence at approximately 4.30am. The time frame of the claimed events was approximately 8 and a half hours, namely from 7.40pm until 4am. Allowing an hour for the vehicle journeys, the time spent at the home of the half-brother and the journey on foot to George Street, the time during which the events complained of could have occurred was some 7 and a half hours, such not being inconsistent with the complainant's time estimate. The appellant told police that he had left the hotel at about 7.30pm and returned the complainant to Elizabeth Street at approximately 9.30pm. The evidence of time, taken together with the appellant's denial of rape, raised for consideration by the jury whether an attack had occurred at all or, if so, whether it could have been effected after the time claimed by the appellant that he left the complainant.

6. The complainant was medically examined. The examination revealed the presence of some minor grazing to the left arm, legs and buttocks and the presence of fresh blood stains over the thigh. The grazes appeared to have been inflicted within the preceding 3 - 6 hours. Some injury could be explained by reference to other activity of the complainant. No trauma to the anal region was observed, but an anal swab was taken. Absence of observable trauma did not, in the opinion of the examiner, establish that there had been no sexual activity. Forensic examination revealed the presence of spermatozoa within the anal cavity, from which the swab sample was taken. In the opinion of the examining forensic biologist, this had probably been deposited within the preceding twenty-four hours. Other seminal stains were located in the underclothing of the complainant. DNA testing of the spermatozoa was inconclusive, because of the small sample obtained. The testing showed that the DNA analysis could have come from the cells surrounding the spermatozoa and not the spermatozoa itself. The opinion evidence did not establish that the spermatozoa came from the complainant. Its presence inside the anus corroborated the version of the complainant that he had been anally raped.

7. The evidence of the complainant was subjected to intense scrutiny. Some of his evidence was inconsistent and it was shown that he had a long history of substance abuse, suffered from a personality disorder and had previously been raped by two men in circumstances not dissimilar to his allegation involving the events of February 1994. The details of his account were, accordingly, subjected to extensive criticism.

8. The relevant test is whether the appellate Court is of the opinion that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The Court must make its own independent assessment of the evidence and determine whether, notwithstanding that there is evidence upon which a jury might convict, it would be dangerous to permit the verdict to stand (Chidiac v R (1990 - [1991] HCA 4; 1991) 171 CLR 432; Whitehorn v R [1983] HCA 42; (1983) 152 CLR 657; M v R [1994] HCA 63; (1994) 181 CLR 487). But an appellate Court ought not simply substitute its own conclusion, but must pay regard to the advantage possessed by the jury of seeing and hearing the whole of the evidence with all the nuances and impressions impossible to translate by means of a transcript.

9. Allowing for the imperfections manifest in the evidence of the complainant, it is nevertheless reasonable to accept his primary contention that he had been sexually assaulted. Evidence reasonably capable of supporting that conclusion includes:

- His own account. He was shown to be subject to human

frailty, but did not attempt to hide his past. He was shown

to be dissolute, but not mendacious. Recall of detail was

shown to be imperfect, but overall his honesty was not

substantially impugned. The jury were entitled to regard

him as a witness of the truth.

- He was known to be intoxicated at an early stage of the

evening. That condition could be used by the jury to

explain an imperfect account, whilst permitting acceptance

of the tenor of the evidence. The condition could also be

accepted by the jury as explaining the apparent or relative

passivity described by him in his account.

- Evidence of the tying of his hands, in a manner which

virtually precluded a self executed act, was consistent with

an act of detention.

- Evidence of the finding of a pillow case by the half

brother in a place described by the complainant, such being

consistent with the "hooded" state at the time he left a

vehicle.

- The manifestation of distress and the making of a

complaint of rape and assault, although not admissible as to

the truth of the events, were consistent with the version of

the complainant.

- Evidence of the presence of spermatozoa in the anus which

supported the conclusion that sexual penetration had

occurred.

10. It is not unsafe to conclude that the complainant had been sexually assaulted. If that can be safely accepted, the contention by the defence that the whole version was either a confabulation or a lie is weakened. If his general account that he had been attacked by someone can be accepted, then greater regard could be had to some of the details of evidence proffered by him. But the acceptance of an assault does not establish that it was the appellant who perpetrated the attack.

11. There was undisputed evidence that the appellant and the complainant were inside the hotel together. There was clear evidence of the state of intoxication of the complainant. It was the Crown case that the appellant had acted as a predator, conscious of the vulnerable state of his intended victim. The complainant was last seen in the motor vehicle of the appellant. The appellant lived in Campbell Street, not far distant from the hotel or the homes of the brother or half-brother. The appellant stated that the complainant had not only been inside his home but conceded that he had placed the complainant on a bed in his bedroom.

12. The appellant was able to give a general description of the interior of the house including the presence of stairs. He was able to recognise some distinctive items of furniture and decoration. He had made a sketch of some of the items inside the house which he claimed to have seen. The sketch was received into evidence and the jury was able to compare his claimed description with photographs of the interior of the appellant's residence. He claimed to recognise a dog depicted in a photograph taken at the home of the appellant.

13. There was compelling evidence capable of linking the appellant with the assaults.

14. In October 1993, the appellant had been the victim of an attack by two men. Following that attack investigating police caused a number of photographs to be taken of sections of the interior of the appellant's residence, including items of furniture. One of the photographs depicted a tie with distinctive colouring and design. A tie matching the one depicted was one with which the appellant's hands were bound when he arrived at the home of his brother. The pattern of the tie was distinctive and provided cogent evidence that the appellant had been involved in the assaults on the complainant.

15. Whilst it is true that each piece of evidence, considered singly, afforded insufficient basis for conviction and could be subjected to criticism, the sum total of that evidence was compelling. This court is required to assess the entirety of the evidence and its quality (Chidiac v R (supra) and Morris v R [1987] HCA 50; (1987) 163 CLR 454). Taken together the account of the complainant, the medical evidence, presence in the bedroom and the comparison of the tie with that previously photographed, afford cogent basis for the verdict reached by the jury. The evidence was capable of leading to a conclusion beyond reasonable doubt that the complainant had, over a considerable period of time, been subjected to sexual assaults, including anal penetration at the home of the appellant. That conclusion would exclude the hypotheses that the appellant was not present during the course of the attack or that any attack had taken place after the complainant had left the appellant's residence. That process would entitle the jury to be satisfied beyond reasonable doubt that the complainant had been assaulted and raped by the appellant.

16. I am satisfied that the verdicts were not against the weight of the evidence and were both safe and satisfactory.

17. Grounds 4 and 5 of the notice of appeal are not made out.

18. Two issues are raised by the appeal in relation to the reception of evidence. The first concerns evidence relating to the tie found on the wrists of the complainant when he arrived at the home of his brother. The ground of appeal states:

"That the learned trial judge erred in law by ruling as

admissible evidence of the existence of a necktie allegedly

photographed within the appellant's house on or about the

15th October 1993."

"... because it had the effect of inviting the jury to

reason that the tie found upon the complainant was so

uncommon that the jury could safely infer, beyond reasonable

doubt, that the tie in the photograph taken on 15th October

1994 (sic) was one and the same tie."

It is difficult to accept that the contention can form a basis for the rejection of evidence on the ground that it is inadmissible. The learned trial judge was not entitled to rule the evidence to be inadmissible because it might be regarded as unreliable (Rozenes v Beljajev [1995] VicRp 34; (1995) 1 VR 533). There can be no doubt that it was relevant to an issue. Assuming that the ground of appeal raises the question of a wrongful exercise of discretion, I am still of the opinion that the evidence was properly admitted into evidence. Evidence of the similarity of a tie at the house of the appellant and that found on the complainant was highly probative of the Crown's contention that the complainant had been bound at that place. If that contention was accepted, then it tended to negate the hypothesis that the complainant had been attacked at a time subsequent to his contact with the appellant. It was probative of the contention that it was the appellant who had assaulted the complainant. Any incriminating evidence can be said to be prejudicial to an accused, but there was no prejudice by reason other than its probative weight (Jarrett v R [1994] SASC 4596; (1994) 73 A Crim R 160). The question of similarity was one of weight and was one properly to be considered by the jury. The exercise of discretion did not miscarry (Markby v R (1978) 148 CLR 108).

19. The second issue relates to the claimed ruling that the defence was precluded from leading evidence from a psychiatrist, concerning possible mental states suffered by the complainant. Central to the defence case was the criticism of both the veracity and reliability of the evidence of the complainant. Cross-examination had established the existence and history of mental instability and alcohol and drug abuse. An examination of the transcript shows that the psychiatrist called by the defence was permitted to give the evidence to the effect that, in his opinion, the complainant suffered from alcohol and poly-substance abuse and personality disorders. He gave opinion evidence to the effect that the presence of the conditions, possessed by the complainant, could impact on the reliability of memory and the accuracy of any account given. The medical records of the complainant were admitted into evidence and the psychiatrist gave his opinion of the import of the material contained in those records. The ground of appeal refers to the rejection of evidence given during the course of the trial. The learned Chief Justice has dealt with the evidence given on the hearing as to whether the complainant was competent to give evidence at all. That is an approach most favourable to the appellant. I do not accept that any ruling given in relation to the issue of competence could be taken as a ruling precluding the leading of evidence on the trial for a different purpose. But even accepting that the prior rulings were accepted by counsel as precluding subsequent admission, I do not accept, for the reasons given by the Chief Justice, that the evidence proposed to be tendered was wrongly excluded. Subsequent to the ruling and during the course of the defence case the defence called the same psychiatrist to give evidence in relation to the effect of the disorder suffered by the complainant and the possible effect of substance abuse on his capacity to give an accurate account of events. Such evidence is relevant and admissible (Bromley v R [1986] HCA 49; (1986) 161 CLR 315) but it can only be led in a form which accords with the principles applicable to opinion evidence. The objections taken to particular questions asked of the witness were based on such principles. There was no wrongful exclusion of evidence.

20. Grounds 1 and 7 of the notice of appeal are not sustained.

21. The grounds of appeal relating to the reception of evidence are not sustained.

22. The appellant contends that the learned trial judge:

"... erred in law by failing to exercise his discretion in

favour of the accused and order that the jury be discharged

after certain members of the jury embarked on an

unauthorised fact finding exercise."

23. One of the matters raised by the prosecution case concerned the length of time which had elapsed before the appellant returned with his motor vehicle to help the complainant who was sitting outside the hotel. Prosecution witnesses had given evidence that the appellant had been absent for some four to five minutes. The appellant gave evidence that his car had been parked some one hundred metres distant and that he had returned almost immediately. Cross-examination was directed at the suggestion that the appellant had returned home to collect his vehicle and return to pick up the complainant. Implicit in the content of cross-examination was the suggestion that the conduct was that of a predator rather than a benefactor. The day following the giving of the appellant's evidence, the court was informed that some members of the jury had visited the general area of the hotel and surrounds. The Court was also informed that one of the jurors had made an enquiry of the Hobart Weather Bureau as to the time of sunset in February. The following exchange occurred between the learned trial judge and the forewoman:

"MADAM FOREWOMAN: A couple of the guys sort of just checked

the walking distance, I mean they were sort of up there

doing stuff.

HIS HONOUR: What, just had a look at the scene and walked

down the street and counted the paces and that sort of

thing?

MADAM FOREWOMAN: Yes, just had a look at, if it was a clear

way in Burnett Street and just sort of, just to get the

perspective of the distance that the car was said to have

been parked from the hotel.

HIS HONOUR: Okay. And then there was some question about

someone getting in touch with the Weather Bureau I think?

MADAM FOREWOMAN: Yes, somebody got in touch with the Weather

Bureau just to find out what time sunset was.

HIS HONOUR: On the Twenty-Second of February? Yes, right.

Did that person who made that contact say anything to the

Weather Bureau? 'I'm asking this because I'm on this Jury'

or something like that?

MADAM FOREWOMAN: Oh no, I don't think so.

HIS HONOUR: It was just a straight out question?

MADAM FOREWOMAN: Straight out, you know sort of what time

did the sun set.

HIS HONOUR: All right, and that's all?

MADAM FOREWOMAN: Yes.

24. A warning was given to the jury and the trial continued. On the day following the exchange, counsel for the appellant applied for the discharge of the jury. In the course of the application further enquiry was made in the following terms:

"HIS HONOUR: I need to know a little bit more about what

those who went to Burnett Street did and in particular I

want to know if any more was done than simply walking to

Burnett Street, walking up and down a bit, having a look

around, noting the various land marks, the position of the

Empire and where the hotel ends and where the shops begin

and so on because I have in mind from the answers yesterday

there is a possibility that whoever went there might have

perhaps taken measurements and used a watch and time things,

that sort of thing, which would really be going into

evidence wouldn't it and I felt I just left that issue open.

So madam forewoman could you help me a little bit about

that.

FOREWOMAN: Yeah, just what I've been told. When the weather

bureau got rung up it was only sunset for the middle of

February, there was no mention of when in February or what

year and from the walking it was just sort of checking where

things were - no actual measurements.

HIS HONOUR: No question of pace - sorry.

FOREWOMAN: No actual - well, like the newspaper reported

pacing, there was sort of none of that, it was just go up,

have a look around and just sort of see what was up there

and -

HIS HONOUR: Generally the topography of the scene?

FOREWOMAN: Yes.

HIS HONOUR: Yes, all right.

JUROR: Your Honour, I am involved and -

HIS HONOUR: That's right - I hasten to add there is no

question of blame about this, it is very understandable.

JUROR: No, I've got no problem at all. I was driving up

Burnett Street from Argyle Street to Elizabeth Street and

observed the signs, I didn't get out of the car, that's all

I'd do, so that's why I asked about - it's not hearsay, it's

something I saw -

HIS HONOUR: Yes.

JUROR: And I just had a doubt about - I just wanted to

confirm what time it got dark in February.

HIS HONOUR: Right.

JUROR: And I rang the weather bureau and I said could you

please - a woman answered and I said could you please tell

me what time it gets dark around about the middle of

February and she went away and came back and said such and

such with an hour's twilight.

HIS HONOUR: Right.

JUROR: That's all that was said.

HIS HONOUR: Right, excellent. Well thank you very much for

that frank disclosure. All nodding I see so there seems to

be consensus that that was the extent of it.

HIS HONOUR: Well now counsel, Mr Wendler, do you want me to

explore it further, is there any special request you have to

make of me?

MR WENDLER: Not really, your Honour, only as to whether or

not, I'm just a little unclear as to whether any of the

members of the jury actually walked from the Empire Hotel to

Campbell Street and had a look at those premises, I'm not

sure about that.

HIS HONOUR: All right, well we'll just ask that. Did anyone

do that, that is, walk out the distance between the hotel

and Campbell Street? No. Anyone? No. All right, no one

seems to have done that."

26. Unauthorised communication between jurors and other persons can lead to a miscarriage of justice. The reception of evidence, from sources outside of the hearing, can likewise result in the need to discharge the jury (R v Hodgkinson [1954] VicLawRp 23; (1954) VLR 140). But the requirement for discharge is not grounded on the fact of communication by, or to, a juror. The question is to be determined by reference to the content and form of the communication. If the former is prejudicial, then it contaminates the jury process, since its impact could affect the validity of the verdict (Duff v R [1979] FCA 83; (1979) 39 FLR 315). If the latter, the question is whether miscarriage occurred by reason that justice did not appear to be done. The test is whether the contact or communication gives rise to a reasonable apprehension that the jury may not have discharged its task with propriety (Webb v R (1993 - [1994] HCA 30; 1994) 181 CLR 41).

27. The visit by one or some members of the jury to the general area of the hotel could be equated with the conducting of a view (R v Wallace (1935) 52 WN (NSW) 21 and Polykarpon v R (1985) 18 A Crim R 288). Assuming that the observations made were communicated to the other jurors, information imparted could be no more than general layout and extent of visibility. It could amount to no more than general or background knowledge of a nature which would be ordinarily possessed by an average juror. In cases involving motor manslaughter, robbery and the like, it is probable that at least one juror would have visited the scene in the normal conduct of life. It is not unlikely that a juror would, during the course of a trial, pass a public place where the relevant event occurred. A juror might visit the bank at which the robbery occurred in the normal conduct of his or her business. Such a visit would not warrant discharge. In the context of this case, the visit could not have resulted in the reception of contaminating material.

28. The telephone advice sought from the Hobart Weather Bureau should be regarded in a similar manner. The juror ought not to have sought the information. But its wrongful obtaining does not necessarily involve the conclusion that the trial miscarried. A juror in possession of a relevant newspaper, or an almanac, could obtain the same information. The information obtained was objective, ie, was a known fact easily verified. The harm which could be caused by the receipt of such information, would only occur if the jury acted on it without regard to cloud and weather conditions, the effect of building shade and the like. The real question is whether the jury acted on material which was not evidence given in the course of the trial. If jurors are known to have received information capable of affecting the verdict then, absent an appropriate direction, the risk of miscarriage remains.

29. The learned trial judge gave two directions to the jury concerning the visit to the scene and the enquiry made to the weather bureau. The first was given immediately following disclosure that a juror or jurors had engaged in unauthorised conduct when the jury was told:

"HIS HONOUR: Thank you. You see it's very important that

Jurors decide the cases on the evidence, that's what your

Oath requires you to do, and the evidence is confined to

what you see and hear in this Court room and not what you

might learn from outside, and for example you just mention

in passing to see whether Burnett was a clearway, it might

or might not be a clearway today, it's a question of whether

is was on the Twenty-Second or Twenty-Third - so you can be

misled, I don't think that's of significance in this case

but it serves to illustrate the point as to why jurors

should confine themselves to what they've seen and heard.

And it might be that the officer who answered the query at

the wether bureau made a mistake in giving the answer but if

it had come to you through the witness box, both counsel

would have checked and double checked the information and

you would have been sure it was accurate. So it's very

important that you don't do those things and just rest on

the evidence."

The second, given during the course of the summing up, was in the following terms:

"When the trial began, each of you took an oath to well and

truly try in accordance with the evidence and the evidence

as you know very well by now in this case is what you've

seen and heard in this court room and nothing else and your

oath requires you to try it in accordance with the evidence

and the standard direction given to juries is that you

mustn't let anything that you've seen or heard outside the

court room affect that. Well I won't go over that - over

all that again, ladies and gentlemen, you know what I mean

of course."

30. Those directions removed the potential prejudice occasioned by the conduct of some of the jurors. That conduct ought not to have occurred, but as Brennan J observed in another context in R v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 615:

"Our system of protecting jurors from external influences

may not be perfect, but a trial conducted with all the

safeguards that the court can provide is a trial according

to law and there is no miscarriage of justice in a

conviction after such a trial."

31. There is no reason to suppose that the jury disregarded the directions and there is no basis for concluding that the trial miscarried by reason of the improper use of material received. Further, there is no reason to conclude that the informed and fair minded observer would have apprehended that the reception of the material (given its nature and generality) resulted in a tainted verdict.

33. Central to the conduct of the defence case was the reliability and credibility of the evidence of the complainant. Opinion evidence as to the effect of his personality disorders and prolonged substance abuse was a significant matter going to both veracity and accuracy. A defence psychiatrist had given evidence to the jury that although he had been unable to examine the complainant:

- he had reviewed the various medical records relevant to

the mental and psychological history of the complainant;

- he had heard portion of the evidence given to the jury by

the complainant and had read a transcript of the remaining;

- he had reviewed a report made by a medical practitioner,

who had examined the complainant soon after the claimed

assaults;

and from that material he was of the opinion that the complainant suffered from alcohol dependence, poly-substance abuse and a disability capable of producing maladaptive or dysfunctional responses. His diagnosis was that the complainant suffered from both anti-social and borderline personality disorders. Persons suffering from an anti-social personality disorder tend to exploit others and are often regarded as deceitful. They are often found to be "inherently less truthful than the average person". Those possessing a borderline personality disorder are frequently found to be involved in conduct described as a cri de coeur. He reviewed the complainant's history of poly-substance abuse and advised the jury that persons with a long history of benzodiazepine use can suffer memory impairment and were known to lie in order to obtain a supply of that substance. He outlined details recorded in the medical files which comprised the history of the complainant containing references to memory losses experienced following prolonged alcohol abuse.

34. The evidence was relevant to the issues of veracity and reliability and the jury was entitled to use such in the assessment of the weight to be afforded the version given by the complainant (Bromley v R (supra)). The appellant was entitled to a direction which reminded the jury of the import of the evidence and the manner in which the opinions expressed by the psychiatrist could be used (Longman v R [1989] HCA 60; (1989) 168 CLR 79). The ground of appeal contends:

"That the learned trial judge erred by instructing the jury

that 'Doctor Sale's opinion really does not count for

anything because he did not go to the stage of diagnosing an

actual medical condition which would be on (sic) your

experience and mine.'"

35. The learned trial judge directed the jury that it should "exercise special care when considering (the complainant's) evidence" because "there are aspects in his background that may ... make his evidence unreliable." He then gave the following directions relevant to the medical conditions possessed by the complainant:

"Doctor Sale told you that he's got these personality

disorders but he was quite clear that he had no opinion that

he had a psychiatric condition that affected his capacity to

recall events and recount them to you. And although Mr

Wendler referred to this evidence at some length and said

about it, in effect, you must be careful when you assess his

reliability, I direct you in this way that you must take

that care but not because of what Doctor Sale said, juries

only need evidence from psychiatrists when they have got

information and opinions about people's mental health that

ordinary folk like you and I would not be able to form,

that's when we need psychiatric help, and Doctor Sale didn't

have any of those opinions about this man. He knew what we

all know, that he's alcoholic, he said that himself, that

he's addicted to these prescription drugs, he said that

himself, he's got a turbulent history, he's been admitted to

hospitals here and Victoria, he's attempted to commit

suicide. You remember he gave you a bit of detail about all

of that. In Victoria, when he tried to electrocute himself,

and he's lied to doctors, as I say, he's had hallucinations

and we all know that if somebody with that sort of

background tells you something happened you need to

scrutinise it with extra care. That's what I'm telling you

about Coppleman's evidence, because of that background

history you need to scrutinise it with care before you

accept it. It's an ordinary proposition, of course. It was

plainly put to you on behalf of the defence that by reason

of his history you couldn't put any faith in what Coppleman

said, in fact he made up the whole account in order to draw

attention to himself or get a drink. Well, you will have to

assess that. It would be wrong to write off somebody of no

account just because they're alcoholic and addicted to drugs

and with this kind of background, it would be quite wrong to

say 'Well anything you say to us ever again we'll never

believe you.' On the other hand, it would be quite wrong

and certainly unfair to the accused with respect to such a

person to say 'Oh well, I believe everything you tell me, no

question. It's just as if the Commissioner of Police had

told me himself', as it were, to pick him at random. So it

would be wrong either way, and all you do is apply your

common sense and look at the other evidence, the outside

evidence."

"... this is really my direction, because of (the

complainant's) history, which has been detailed to you,

there's a real risk that his evidence might be unreliable

and we must be careful to take into account that risk, extra

in his case, over and above ordinary witnesses, when we are

considering his evidence."

36. It is in this context that the direction claimed to be inadequate should be considered. On the following day the learned trial judge returned in his directions to the medical evidence generally and told the jury that:

"Well now I just mention briefly the medical evidence and

remind you, as I think Mr Wendler correctly told you, and I

mention to you that it is up to you whether you accept

expert opinion evidence or not. The rule of evidence is

that generally witnesses can only tell juries what they

perceive with one of their senses, it is something they see

or hear or touch or smell and so on, and it is up to the

jury to draw what inferences they think are appropriate from

that. But sometimes ordinary human experience is not

sufficient to understand the evidence so where we move into

the realm of expert testimony such as medical testimony the

witnesses are allowed to give their opinion of matters

within their expertise and that is why you got opinions from

these Doctors you see but you could not get opinions from

others and that is why Dr Sale's opinion really does not

count for anything because he did not get to the stage of

diagnosing an actual medical condition which would be beyond

your experience and mine."

37. The direction did not do justice to the evidence given by Dr Sale. He had diagnosed the presence of a personality disorder and described its characteristics in the following terms:

"... a personality disorder is often subdivided up into

various types and in Mr Coppleman's case there were two

particular types that repeated over and over again in the

files - they were the diagnosis of anti-social personality

disorder and the diagnosis of borderline personality

disorder. Sometimes they were given individually and

sometimes in combination and that is permitted in

diagnosis."

"A person with an anti-social personality disorder is a

person who habitually deviates from cultural norms regarding

social behaviour such that they frequently have an extensive

criminal record, they frequently have a poor occupational

record, they tend to exploit or to con others, they are

often regarded as deceitful".

38. Although the reference by the learned trial judge was made, by way of example, during the course of general advice as to how opinion evidence may be regarded, it did not accurately state the import of Dr Sale's evidence. Had the first direction specifically reminded the jury that a particular mental disorder could itself produce mendacity, rather than affect the capacity for recall, the second comment, given by way of general example, may not have detracted from it. The jury could recognise it as a separate question. But the specific direction, whilst accurately stating that the personality disorder did not affect capacity for recall, did not identify the diagnosis and possible manifestation of an inherent dishonesty. The second direction further detracted from the import of the earlier advice. I am satisfied that the combination produced a less than satisfactory direction.

39. The question is whether the insufficiency warrants the upholding of the appeal. The veracity of the complainant was a crucial issue. Although it is not incumbent on a trial judge to put to the jury all of the defence evidence and all of the contentions advanced by the defence (R v Frost (1969) Tas SR 172) in the circumstances of this case, the defence was entitled to have the weight and quality of the complainant's evidence (Tegg v R (1982) Tas R (NC 16) 306, (1982) 7 A Crim R 188) assessed by reference to the opinion evidence given as a result of a medical diagnosis. The evidence, and its import, raised a specific issue and it was essential for the jury to be clearly directed as to that issue and as to the use of the evidence relating to it (R v Schmahl [1965] VicRp 95; (1965) VR 745). The specific issue was the making of a diagnosis and the manifestations associated with that medical condition. Although the learned trial judge properly directed the jury as to veracity in general terms he did not explain how the opinion evidence might be applied to the particular issue (Fitzgerald v Penn [1954] HCA 74; (1955) 91 CLR 268). I have given consideration to the application of the Criminal Code, s402(2), but notwithstanding that I have concluded that the verdict is not unsafe or unsatisfactory, I cannot conclude that "there is no possibility that the appellant lost a chance of acquittal which was fairly open to him" (Harris v R [1988] TASSC 26; (1988) Tas R 31, Cox J at 58).

41. The appellant has sought to introduce fresh evidence pursuant to the Criminal Code, s409. The evidence consists of a document recording the details of the telephone call to police made by the complainant's brother shortly after the arrival of the complainant at his residence. The document records the notation made by the operator at 4.24am that the named victim "just arrived at above address, with hands tied behind back. Claimed was grabbed about six hours ago by four blokes who had him tied hand and foot." Neither the fact that the incoming call was logged, nor the contents of the record, were disclosed to the defence. Indeed, the existence of the material was not known to counsel for the Crown. Royal Commissions are usually able to uncover such detail and it may be that the material would have been discovered by assiduous enquiry and search. But the amount of material collected and retained in these complex times make such a task daunting and, ordinarily, beyond the capacity of an average litigant. I am satisfied that the material could not have been discovered by usual diligence (Gallaher v R (1985 - [1986] HCA 26; 1986) 160 CLR 392) and was not available at the time of trial (Winslett v R (1992) SASR 1). There is no doubt that the evidence is credible. There is no doubt that the brother made a telephone call to the police at, or near, the time of the arrival of the complainant. The contents of the call were transposed by the operator onto a computer. The substance of the report is both capable of debate and likely to be believed by a jury (Ratten v R [1974] HCA 35; (1974) 131 CLR 510). The evidence of the making of a complaint to the brother was capable of being used in the assessment of the credibility of the complainant. The content of the complaint was not capable of constituting evidence of the truth of the occurrence. The contents of the report could only have been used in the cross-examination of the

brother as a version inconsistent with his account given on the trial. Its use was limited to the issue of his own credibility, not to that of the complainant. There was no issue that a complaint had been made. That evidence had been led on the trial. It was the making which made the evidence admissible. There was no issue that the complaint was not of a violent and sexual nature. The fresh evidence relates to the contents of the conversation. The witness did not give evidence of the details of the conversation with his brother, nor was he asked if the complainant had referred to the number of persons claimed to have been involved. There was evidence in the medical records, taken during the examination, that the complainant had referred to the existence of two men. For the purpose of analysis, it is assumed that the omission by the brother of reference to the number of men referred to by the complainant was capable of classifying the evidence in the report as that of a prior inconsistent statement. The question has been stated as whether "the Court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant, had the fresh evidence been before it at the trial" (Mason CJ in Michelberg v R [1989] HCA 35; (1989) 167 CLR 259 at 274). I would prefer to adopt the test (stated by Brennan J in Michelberg (supra) at 275) of whether the jury would have been "likely to have entertained a reasonable doubt about the guilt of the accused". That test is applied to consideration of the issue to which the "fresh evidence" could be used and its likely effect on the verdict.

42. There was cogent evidence that the complainant had been assaulted and raped. The making of the complaint to the brother was consistent with the account of that occurrence. There was no doubt that a complaint had been made; indeed the fresh evidence does nothing other than to reinforce that conclusion. Criticism going to the weight of the evidence given by the brother as to the making of a complaint, based on inconsistency, could not have advanced the contention that no complaint had been made. In that regard it could not be said to be likely to induce a reasonable doubt. A different question is raised by the effect of the Evidence Act 1910, s81L. That section provides:

"81L (1) Nothing in this Division affects the admissibility

of a representation not made admissible by this Division but

which is admissible as

(a) a previous inconsistent or contradictory statement under

section 98 or section 99; or

...

(2) Where in any proceeding

(a) a previous inconsistent or contradictory statement made

by a person who is called as a witness in that proceeding is

proved by virtue of section 98 or section 99, or

...

that statement is admissible as evidence of any fact stated

therein of which direct oral evidence by him would be

admissible."

43. The defence case was primarily concerned with the veracity of the complainant's account. The use of the "fresh" evidence could not have impacted on the issue of the making of the complaint and its use as corroboration. But a secondary proposition advanced by the defence was that an attack on the complainant could have been made at a time subsequent to contact with the appellant. The number of assailants was relevant to that issue. Acceptance of the presence of four assailants was evidence supportive of the defence contention. Use of the material comprised in the record could have been made in the following way:

- the complainant had complained to his brother of an

attack;

- the brother had repeated accurately the substance of the

complaint to police;

- the brother, in giving evidence to the jury, could have

been shown to have made a prior inconsistent statement;

- the prior inconsistent statement was admissible as

evidence of the facts stated therein, namely that the

complainant had alleged that he had been assaulted by four

men;

- the facts stated therein were that the complainant had, in

fact, stated to his brother that he had been assaulted by

four men;

- the credibility of the complainant was thereby weakened.

44. What the complainant told his brother was not and could not constitute evidence of the claimed events, but simply afforded consistency with his account given to the jury. His account was that he had been sexually assaulted. That occurrence could be safely established without reference to the making of a complaint. The identity of the assailant was not established by direct evidence of the complainant. The complainant denied an act of meeting with other persons subsequent to his leaving the first house to which he had been taken. But proof, by means of the application of the Evidence Act, s81L, that he told his brother of the existence of four men, does not destroy his contention that he was sexually attacked after he left the hotel, was subsequently released and made his way to the home of his brother.

45. At best, admission by the brother that he had been told of an attack by four men would have entitled the defence to seek the recall of the complainant. Questions directed at the contents of the complaint could have elicited a response that he denied the version, in which case the conflict could be used in relation to the question of credibility or he admitted the version but had got it wrong. At best, assuming that evidence had been elicited from the brother that the complainant had mentioned four men, then by virtue of the Evidence Act, s81L, the contents of the statements made to the brother could, as a prior inconsistent statement, be used as evidence of the fact of their presence. Given the general tenor of his evidence and the attacks made on it, one could not conclude that he would admit the reality of the presence of four men. There was no evidence other than of the presence of two men. There was no evidence of the presence of the complainant in a house other than that of the appellant. There was no evidence that, after he was left by the appellant, the complainant had gone to any place other than the homes of his brother and half-brother. Accepting the optimum use of the evidence, it could not be said that the reception of the "fresh evidence" was likely to have an effect that a verdict of guilty would not have been returned. It is not of sufficient significance as to require the setting aside of the conviction (Zaidi v R (1991) 57 A Crim R 189).

47. I have concluded that the appeal should be allowed. But I am aware that my brethren have concluded that the appeal against conviction should be dismissed. It is necessary for me to consider the question separate from my conclusion as to the disposition of the appeal. I do not regard the sentence as being manifestly excessive. Accepting the verdict, one could only conclude that the crimes comprised:

- acts of selection and removal of a person perceived to be

vulnerable;

- exercise of power over a person immobilised;

- prolonged exercise of power;

- acts of repeated rape;

- acts of gratuitous violence, designed to achieve pleasure

of the exercise of power rather than those necessary to

achieve an immediate purpose;

- acts committed in company.

48. Matters going to mitigation such as age, remorse, deprived background, transient passion and the like are absent. The sentence imposed may have exceeded that which I would have "intuitively" imposed, but such does not establish that it was manifestly excessive. My conclusion in relation to the conviction has no place in the consideration of the appropriate sentence. The sentence was at the higher end of the scale of punishments, but I am satisfied that it was within accepted relevant parameters.

49. I have concluded that ground 9 of the notice of appeal should be upheld. I would allow the appeal, quash the conviction and order that the appellant be retried. I would grant the application for leave to appeal against sentence, but dismiss the appeal.