De Jesus v The Queen

De Jesus v The Queen - [1986] HCA 65 - HCA 1986 case summary — Zoe

[15]

Strictly speaking, it was submitted that each boy's evidence was inadmissible in considering the other charge. This is somewhat surprising, since, of course, in that event there should have been separate trials . Lord Cross of Chelsea (at 459) dealt with the matter rather more fully. He said: When in a case of this sort the prosecution wishes to adduce "similar fact" evidence which the defence says is inadmissible, the question whether it is admissible ought, if possible, to be decided in the absence of the jury at the outset of the trial and if it is decided that the evidence is inadmissible and the accused is being charged in the same indictment with offences against the other men the charges relating to the different persons ought to be tried separately. If they are tried together the judge will, of course, have to tell the jury that in considering whether the accused is guilty of the offence alleged against him by A they must put out of mind the fact - which they know - that B and C are making similar allegations against him. But, as the Court of Criminal Appeal said in Sims [1946] KB 531 at 536, it is asking too much of any jury to tell them to perform mental gymnastics of this sort. If the charges are tried together it is inevitable that the jurors will be influenced, consciously or unconsciously, by the fact that the accused is being charged not with a single offence against one person but with three separate offences against three persons. It is said, I know, that to order separate trials in all these cases would be highly inconvenient. If and so far as this is true it is a reason for doubting the wisdom of the general rule excluding similar fact evidence. But so long as there is that general rule the courts ought to strive to give effect to it loyally and not, while paying lip service to it, in effect let in the inadmissible evidence by trying all the charges together. Lord Wilberforce expressed a similar view, at 442. Although, as I have said, the case concerned homosexual offences, the reasoning of Lord Cross of Chelsea is equally applicable to heterosexual offences since in those cases the risk of prejudice will be equally great. In Sutton (a case arising under the law of South Australia) this Court applied the same principle to cases of rape. In that case I said (at 531; 333): Before us it was accepted by counsel for the prosecution that where an accused is charged with a number of sexual offences, the charges should not be tried together if the evidence on one count is not admissible on another count. That was the view taken by the majority of the House of Lords in Boardman and it is a view consonant with justice . Brennan J (at 541-542; 340-341) said: When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury's mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted. This is a general statement, not limited to sexual cases, and so viewed I respectfully agree with it. Sexual cases, however, are peculiarly likely to arouse prejudice, against which a direction to the jury is unlikely to guard. For that reason, I adhere to the view which I expressed in Sutton.

[43]

At the trial, it was common ground that the only issue was how the trial judge's discretion should be exercised and in the Court of Criminal Appeal whether it had been erroneously exercised. It was not submitted, in accordance with the views expressed by Gibbs CJ and Brennan J in Sutton, that the trial judge was bound to order separate trials because evidence admissible on one set of counts was inadmissible on the other. At first instance the debate centred on the existence or non-existence of a "special feature", to use the words of Lord Pearson in Ludlow, a notion which, on the applicant's argument in this Court, has no place in the regime for which s 585 provides. In this situation we agree with the Court of Criminal Appeal that it has not been shown that the trial judge erroneously exercised his discretion if one has regard only to what was put to him in argument. And it is certainly not a case in which we should grant special leave to appeal so that the court may authoritatively determine the correctness or otherwise of a general proposition which was not put to him in argument and has never been advanced on behalf of the applicant, namely, that, in accordance with the concession made and some of the views expressed in Sutton, a trial judge is always or generally bound to order separate trials of alleged sexual offences committed against different persons on different occasions if it appears that the evidence on one charge or set of charges is inadmissible on the other. As has been seen, the basis on which the application for separate trials was made to the trial judge and the manner in which the applicant's case was presented in the Court of Criminal Appeal in the present case were inconsistent with any such general proposition. Nor was any such general proposition advanced on the applicant's behalf in this Court where counsel who now appears for him, understandably did not seek to depart from the manner in which the case was presented in the courts below. In these circumstances, and in the absence of full argument and of the benefit of the views of the Court of Criminal Appeal, it would be difficult to imagine a more inappropriate case for determining the correctness of that general proposition.

[44]

It is true that the fact that a point has not been raised on behalf of an accused at his trial or, after conviction, on appeal, does not necessarily preclude it from constituting the basis of a finding by an appellate court that there has been a miscarriage of justice. In the present case, however, there are other factors which weigh heavily in favour of an opposite finding. Ordinarily, there would be considerable force in the applicant's argument that the consideration that the applicant's defence to one set of charges was mistaken identity while his defence to the other set of charges was consent, was a matter to which the trial judge should have paid particular regard in determining whether he should exercise his discretion to direct separate trials. In fact, the reason why the learned trial judge did not pay particular regard to that consideration was that the applicant's counsel refrained from informing him of the intention to rely on the contrasting defences to the different sets of charges. It is scarcely conceivable that that was something which would have escaped counsel's attention and it was not suggested that it did. If the failure to inform the trial judge of the contrasting defences at the time when the application for separate trials was made was deliberate for forensic or appellate purposes, as in the absence of any explanation it would seem to have been, the applicant can hardly complain of the consequences of that failure. Indeed, it is difficult to see how a party can even argue that a trial judge's exercise of discretion miscarried, let alone that there was a substantial miscarriage of justice, by reason of a failure to give weight or sufficient weight to a factual matter of which the trial judge was deliberately kept in ignorance by that party. Moreover, this Court always pays close attention to the manner in which a party deliberately conducts his case at the trial and takes some care to ensure that it does not, by acceding to arguments not put at the trial, encourage the approach that a failure to raise matters at the trial is likely to be rewarded, in the event of conviction, with the opportunity to conduct the case in a different way on a second trial with consequent damage to the administration of criminal justice. This is particularly so where, as here, the primary witnesses are two complainants of rape, each of whom would be required again to give evidence of her harrowing ordeal, one of whom would again be subjected to lengthy and hostile cross-examination aimed at showing that she consented to sexual intercourse.

At a glance

Court

Decision date

Before

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Judgment (71 paragraphs)

Parties

Cases Cited (3)