Criminal law - Appeal - Conviction - Sexual offences - Various grounds - Relevance of complainant allegedly smiling in response to comment about experimenting with sex - Collateral evidence - Whether trial Judge erred in not directing jury in relation to honest and reasonable but mistaken belief - Turns on own facts

Amicus Curiae : Unrepresented Criminal Appellants Program

Attorney-General v Hitchcock [1847] EngR 616; (1847) 1 Exch 91

Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460

Narkle v The Queen [2001] WASCA 31; (2001) 23 WAR 468

Natta v Canham [1991] FCA 470; (1991) 32 FCR 282

Nicholls v The Queen [2005] HCA 1; (2004) 219 CLR 196

Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650

Suresh v The Queen [1998] HCA 23; (1998) 153 ALR 145

Harman v The State of Western Australia [2004] WASCA 230; (2004) 29 WAR 380

Rodd v The State of Western Australia [2000] WASCA 329

1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Roberts-Smith JA. I agree with those reasons and have nothing to add.

2 ROBERTS-SMITH JA: The applicant applies for leave to appeal against conviction.

3 Following a three day trial before a Judge and jury in the District Court at Bunbury, the applicant was convicted on 22 October 2004 of one count of indecent assault (contrary to s 323 of the Criminal Code (WA) (the "Code")), one count of sexual penetration without consent (s 325 of the Code) and one count of aggravated sexual penetration without consent (s 326 of the Code).

4 The offences the subject of counts 1 and 2 occurred in October or November 2001. At the time the offences were committed, the complainant did not report the matters to the police. It was only when the offence the subject of count 3 occurred in November 2002 that the complainant reported that matter to the police and subsequently disclosed the details of the 2001 offences.

5 In relation to the 2001 offences, the applicant and the complainant were drinking and socialising with a number of other people at an address in a town in the south-west of the State. The complainant had consumed some beers and marijuana and went to sleep alone in one of the bedrooms. He later awoke to find the applicant masturbating his penis. The complainant told him "no" three times but the applicant kept going. The complainant said that he "just froze". One of the occupants of the house, TR, came into the bedroom and told the applicant to leave the complainant alone and that the complainant liked women. The applicant continued masturbating the complainant and later put his mouth on the complainant's penis. Again, the complainant said he "froze". TR left the bedroom and shortly after, the applicant left the house. The complainant went to sleep in another room. When he woke up, he told the occupants of the house what had happened. He told them that the applicant had raped him and he cried. His evidence was that he did not report the matter to police at that time because he knew the applicant had a big family and was scared.

6 The offence the subject of count 3 occurred about a year later. On 30 November 2002, the complainant and TR went to the house of another friend, LP, just outside town. They arrived at about 2 pm. They had a barbecue, consumed some wine and watched Foxtel. At about 5 pm, the

applicant arrived at the house with some other people. They continued drinking and later in the evening, the complainant went to sleep alone in one of the bedrooms. His evidence was that he was "drunk but [he] still knew what was going on." When the complainant went to bed, the applicant was watching television in the lounge room. The applicant was supposed to be sleeping on the couch. The complainant awoke later in the night to find his tracksuit pants and underpants pulled down to his knees and the applicant sucking the complainant's penis. The applicant grabbed the complainant's waist and tried to roll him over on his side. The complainant asked the applicant what he was doing and went to hit him. The applicant grabbed the complainant by the throat. The complainant couldn't breathe, so he grabbed the applicant's throat and hit him about six times. The applicant asked to be let go, which the complainant did, and the applicant fled the house. The complainant went and told LP "he's done it again". The complainant then walked to TR's house and told her what had happened. He asked TR to call the police, which she did, and they had a coffee and a smoke while they waited for the police to arrive. The police arrived and took the complainant to the hospital where swab samples and photographs were taken. The complainant had red marks around his neck, some abrasions on his chest and swollen knuckles. The complainant's tracksuit pants, singlet and underpants, as well as the sheet and doona cover from the bed, were taken by police for forensic testing.

7 It was not until July 2003 that the applicant participated in a police video record of interview and was charged with the offences. A DNA sample was also taken from the applicant at that time. In his video record of interview, the applicant said he was aware of the allegations. He said on the night of the 2002 incident, he was asleep on the lounge and the complainant woke him up and started fighting him. He said he pushed the complainant away and told him to stop. He said he only went into the bedroom that night to get away from the complainant during the fight. He denied sucking the complainant's penis or grabbing the complainant's throat. He said the complainant did not like him because he was gay. He also said at the time of the 2002 incident, the complainant was LP's boyfriend and the complainant was jealous of the applicant from when he had previously gone out with LP. In relation to the 2001 incidents, he said TR was talking about a time when she and the applicant had had sex before and TR asked the applicant if he wanted to do it again. The applicant declined because he wanted to go home. TR said she wanted to have sex with both the applicant and the complainant. The applicant denied ever having any sexual contact, consensual or otherwise, with the complainant.

8 The applicant gave evidence at trial and the defence case, in short, was that the activity had been consensual. His evidence was that in 2001, after the complainant had gone to bed, TR and the applicant were talking about sex in the lounge room. TR said that she had given the complainant a head job before and that she wanted to have sex with both the complainant and the applicant. They went into the bedroom where the complainant was sleeping and TR asked the complainant if he wanted a head job. The complainant said "yes" and TR began to suck his penis. The applicant lay down on the bed next to the complainant while TR did this. TR then sucked the applicant's penis. The applicant asked the complainant if he wanted a head job and the complainant said "yes". The applicant masturbated the complainant's penis. TR left the room. The applicant sucked the complainant's penis until he ejaculated and then they talked about masturbation and fantasies. The applicant denied that the complainant had told him "no" and said the complainant had told him he liked both men and women.

9 In relation to the November 2002 incident, the applicant said that he and the complainant had been sitting and drinking near the stereo and talking about sex. The applicant asked the complainant if he wanted a head job, to which the complainant replied "yes". They went into the bedroom together and the applicant touched the complainant's penis outside his clothes while they were standing up. The complainant removed his pants and the applicant put the complainant's penis in his mouth. The applicant's evidence was that he "got a bit excited" and bit on the complainant's penis and the complainant punched him in the head and told him not to bite it. The applicant put the complainant's penis back in his mouth and bit it again. The complainant grabbed him by the throat and started to bash him. The applicant grabbed the complainant by the throat and asked the complainant to stop as he had black eyes and a cut lip and was bleeding. The complainant let go and the applicant left the house. Again, he maintained that the activity had been consensual and said he did not see a doctor about his injuries because he did not want to explain to the doctor what had happened.

10 The applicant said he did not tell the truth in the video record of interview because he was afraid of being in trouble, panicked and embarrassed.

11 A notice of appeal was filed on 10 January 2005, together with an application for extension of time and a supporting affidavit. Amended grounds were formulated with the assistance of Ms Farley and the Unrepresented Criminal Appellants Program at the University of Notre Dame and these were faxed to the Court on the day prior to the hearing of the application for leave to appeal. There being no opposition from the State, the Court granted the extension of time and leave to amend the grounds at the hearing. The grounds of appeal as they now stand are:

"1. The Learned Trial Judge erred in refusing to allow cross-examination of the complainant relating to a conversation the complainant had had with one [JM] following count one on the indictment and by refusing to admit evidence from [JM]. Such evidence was probative and should have been left to the jury.

2. The Learned Trial Judge erred in refusing to allow the applicant's counsel to call evidence to contradict evidence given by prosecution witness [TR] regarding her involvement in the incident. Such evidence went to the facts in issue in the case and was not collateral evidence.

3. The Learned Trial Judge erred in failing to direct the jury as to honest and reasonable but mistaken belief (section 24, Criminal Code of Western Australia)."

12 Grounds 1 and 2 relate to the incidents in 2001 (counts 1 and 2) and I take ground three to relate to all three counts.

13 In the course of cross-examination, trial counsel for the applicant sought to ask the complainant about a conversation he allegedly had with JM the day after the 2001 incident (t/s 68):

"Do you know a lady called [JM]?---Yeah.

Did you tell her that you'd been raped?---Yeah.

And did she say to you that experimenting with sex doesn't mean to say you've been raped?

MULLER DCJ: Sorry, is that admissible?

HEDGES, MR: Sorry, sir, I sort of - no, I object.

MULLER DCJ: I was alarmed with that being introduced because a statement by another person to this witness would obviously fall into the category of hearsay."

"Evidence of recent complaint is clear enough. This witness can be asked by the prosecution to give evidence of any complaint he made to another person at the first reasonable opportunity after the alleged sexual assault. That is where it begins and ends. Anything said by another person to this witness in response to his complaint would not be admissible."

15 The prosecution did not lead evidence of the conversation with JM during the complainant's examination in chief. In the absence of the jury and the complainant, counsel for the applicant said that she wished to call JM to give evidence of the conversation and particularly, that the complainant had smiled in response to JM's comment regarding experimenting with sex. Counsel argued that such conduct amounted to an admission that the activity had been consensual and that if the complainant had still been of the view that he had been "raped", then his response would have challenged JM's comment. His Honour responded (t/s 70):

"...it's a very long bow to draw. A smile in that context could mean anything. It might be a smile of dismissal. It might be a smile of bemusement. There [sic] mere fact that he smiled in response to that spontaneous remark which in itself is hearsay could not, in my view, be interpreted unequivocally as an admission that he had indulged in consensual sex ..."

16 The trial prosecutor submitted that it was wrong to lead detailed evidence of recent complaint and all that was required was evidence in summary form to confirm that there was such a complaint. His Honour agreed and said that the actual terms of the complaint are not evidence of the truth of what was asserted and that is why any response from another witness to the alleged complaint falls entirely into the category of hearsay. His Honour ruled that the evidence was too equivocal and had no probative value and therefore, could not be adduced as any form of admission that the activity was consensual or that the complainant fabricated the allegation of "rape".

17 The applicant submits that although the complainant's alleged response to JM's comment may well be equivocal, it was a matter that should have been left to the jury for their consideration, specifically because it was the only piece of evidence that challenged the other evidence of complaint.

18 The respondent quite rightly concedes that it is not the rule against hearsay that excluded the evidence from being led, given that it was a conversation that the complainant himself was involved in. In fact, evidence of recent complaint in cases involving alleged sexual offences, insofar as it is not evidence of the truth of the facts asserted in the complaint, is an established exception to the rule against hearsay. Rather, it is submitted that JM's comment was an irrelevant response to the complaint itself and hence, could not be admissible.

19 It is well established that evidence of complaint is admitted not as evidence of the facts in issue, but as evidence of consistency which buttresses the credit of the complainant: Suresh v The Queen [1998] HCA 23; (1998) 153 ALR 145 at [4] per Gaudron and Gummow JJ. The evidence itself has no probative value as to any fact in contest: Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460 at 472 per Barwick CJ.

20 However, what was sought to be relied upon was not the evidence of the complaint to JM, or JM's comment, but the complainant's response to JM's comment. The admissibility of such evidence must be determined on grounds of relevance.

21 Evidence is relevant if it is logically probative of some matter which requires proof. The probative value of relevant evidence is the extent of the tendency of the evidence to do that. In Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650 at [6], Gleeson CJ, Gaudron, Gummow and Hayne JJ held:

"As is always the case with any issue about the reception of evidence... the first question is whether the evidence is relevant. ... Further, although questions of relevance may raise nice questions of judgment, no discretion falls to be exercised. Evidence is relevant or it is not. If the evidence is not relevant, no further question arises about its admissibility. Irrelevant evidence may not be received. Only if the evidence is relevant do questions about its admissibility arise. These propositions are fundamental to the law of evidence and well settled. They reflect two axioms propounded by Thayer and adopted by Wigmore (Thayer, 'Presumptions and the Law of Evidence', Harvard Law Review, vol 3 (1889) 141, at pp 144-145; Wigmore, Evidence in Trials at Common Law (Tillers rev) (1983), vol 1, SSSS9, 10) :

'None but facts having rational probative value are admissible,'

'All facts having rational probative value are admissible, unless some specific rule forbids.' "

22 The issue in this case was whether the sexual activity that occurred was consensual. I accept the respondent's submission that the evidence of the complainant's alleged smile, even taken at its highest, does not tend to prove or disprove anything in relation to the issue of consent, whether it be an admission that the sexual activity was consensual or evidence which is inconsistent with the complainant's prior statement that he had been raped. It is incapable of doing so and is therefore irrelevant.

23 The trial Judge was correct to rule as he did and not permit the evidence to be given in the form of cross-examination or being led through JM. This ground accordingly must fail.

24 Following his Honour's ruling on the conversation with JM, trial counsel for the applicant raised another issue that required a ruling to be made. She sought to cross-examine the prosecution witness TR about a conversation she had allegedly had with MP the day before the 2001 offences. MP was an occupant of the house in which the 2001 offences occurred. During the conversation, TR allegedly told MP that she wanted to have a threesome with the complainant and the applicant.

25 MP was to be called as a prosecution witness. He was present at the house on the night of the 2001 offences, but did not see anything. He was to give evidence of recent complaint made by the complainant to him and the other occupants of the house the following morning. However, on the morning of the trial it became apparent to the State prosecutor that he had given a statement to the defence and may well depart from his original statement in evidence. In light of that and the fact that MP also fell ill on the morning of the trial, the prosecutor indicated that he was minded not to call him as a witness.

26 The trial Judge questioned trial counsel for the applicant (at t/s 72) as to whether a denial by TR that she had told MP that she wanted to have a threesome would fall into the category of a collateral issue, upon which her answer would be final and counsel would not then be permitted to call MP to contradict that evidence. Counsel submitted that it would not fall into such a category because on the defence case, TR was present and involved in consensual sexual activity with the applicant and the complainant on the night in question and her evidence therefore went directly to the issue in question, which was consent. In particular, she sought to rely upon Narkle v The Queen [2001] WASCA 31; (2001) 23 WAR 468 in support of her submission that issues going to credit alone are not necessarily to be categorised as collateral.

"You can certainly cross examine the complainant on the fact that [TR] was present and a participating party. You can certainly put to [TR] that she was a participating party. You can put to [TR] that she had actually intimated to [MP] the day before that she wanted to take part in a threesome. If she denies that, you will not be able to call [MP] to contradict her denial. That's as I see the position."

28 TR gave evidence that on the night of the 2001 incidents, she had been drinking bourbon and had smoked about half a dozen cones of cannabis. The complainant had been drinking Emu Bitter and she and MP put him to bed in her room later in the evening because he had "lost his legs and control of himself and bombed out." She said the complainant was dressed when they left him in the room.

29 At the end of the night, she and the applicant were the only ones still awake and they had intentions of going to bed with each other. TR said she went to have a cigarette on the front porch and when she came back inside, she could not find the applicant. She sat at the kitchen table and had a drink and a cigarette. She heard the complainant moaning, but thought she might have just been hearing things. She continued to drink and smoke and then got up to go to the toilet. She heard the complainant moaning again and looked into the room to see both the complainant and the applicant in her bed. The complainant had his pants partly pulled down and the applicant was sucking the complainant's penis. When she saw that, she asked the applicant to leave him alone because she heard the complainant say "I don't like that. I like women. Leave me alone." The applicant continued and TR asked him again to stop. The applicant stopped and said "The little cunt's liking it" and then went back to sucking the complainant's penis. While this was happening, the complainant was mumbling, distressed and stiff in his arms. She then said she was going to get MP, but she didn't make it because she collapsed in the lounge room from shock.

30 The next thing she remembered was waking up the next morning. She noticed that the complainant was in bed in another room. She spoke to the other occupants of the house about what had happened. When the complainant woke up, he told them all that the applicant had raped him.

31 In cross-examination, TR was asked about the alleged conversation with MP (t/s 110):

"Did you tell [MP] the day before that you wanted to have sex with [the complainant] and [the applicant]?---No, I didn't.

Never told [MP] that?---Never."

32 The issue to be determined is whether the alleged statement by TR to MP falls into the category of collateral evidence and hence, whether the trial Judge was correct in prohibiting evidence being called to contradict her denial of the statement.

33 The applicant submits that the evidence was not collateral and should have been allowed because it goes to the issue of consent. The relevance of the evidence to consent is based on the defence contention at trial that the sexual activity on the night in question actually involved TR and was consensual. The applicant submits that his Honour's view that the conversation was between "two persons who had absolutely nothing, on the prosecution case, to do with the actual incident itself" (t/s 73) was incorrect and that he erred in excluding the evidence on the basis that it did not relate to the credibility or consent on behalf of the complainant.

34 The respondent submits that the alleged conversation was not a matter that could have been led by the defence as part of its own case because the matter only went to the credibility of TR as a witness and hence, was not sufficiently relevant to the issue of the complainant's consent.

35 The collateral evidence rule declares that answers given by a witness to questions put to him or her in cross-examination concerning collateral matters are final. Those answers cannot be contradicted or rebutted by other evidence. This rule is often referred to as the "finality" rule.

36 As McHugh J said in Nicholls v The Queen [2005] HCA 1; (2004) 219 CLR 196, there are two tests for determining whether a matter is collateral. The first is that set out by Pollock CB in Attorney-General v Hitchcock [1847] EngR 616; (1847) 1 Exch 91 at 99:

"The test whether a matter is collateral or not is this: if the answer of a witness is a matter which you would be allowed on your own part to prove in evidence - if it have such a connection with the issues, that you would be allowed to give it in evidence - then it is a matter on which you may contradict him."

37 The second test defines collateral matters in terms of credit. Generally, a fact's relevance to an issue other than credit is a necessary condition of its admissibility. As McHugh J explains, this test can be problematic (at 217):

"The problem with this test is that it is often difficult to maintain the distinction between credit and issue. It is also often difficult to maintain the distinction between evidence that affects only the credit of a witness and evidence that is relevant to a fact in issue. The credibility of a witness is inevitably indirectly relevant to establishing facts in issue. Sometimes, the credibility of a witness is decisive of the facts in issue. It is a matter of degree, both in relation to relevance and to whether a fact is collateral. Whether a fact bears on the credit of a witness depends not only upon what the witness represents to the court, but also upon the nature of the party's case." (Citations omitted)

38 In Narkle (supra), Murray J (Kennedy and Pidgeon JJ agreeing) said that while later cases queried whether the test in Hitchcock should be applied in all cases, "the exclusionary principle to which the rule itself gives expression remains in full force and effect, and ... is as important now as it ever was, particularly in cases of trial by jury" (see [29]). However, the Court adopted the flexible approach recommended by the Full Court of the Federal Court in Natta v Canham [1991] FCA 470; (1991) 32 FCR 282 - namely, that the exclusionary rule was not absolute and the categories of exceptions to it are not closed. The Full Court also observed at 299:

"...the credit worthiness of a witness is always indirectly relevant to facts in issue and may be decisive of those facts particularly where the witness is a participant in events to which they relate. It is then difficult to justify, by reference to the credit/issue distinction, disallowing evidence which may rebut such testimony. And it is, with respect, correctly suggested that the test for characterisation of a matter as collateral propounded by Pollock CB reduces to a test of sufficient relevance, a question it may be added peculiarly within the province of the trial Judge to determine."

39 Most recently, and following the applicant's trial, the High Court considered the collateral evidence rule in Nicholls (supra). The Court was generally of the view that strict application of the collateral evidence and finality rules could lead to injustice and hence, should be regarded as flexible depending on the circumstances of the case (see McHugh J at 222; Gummow and Callinan JJ at 261; Kirby J at 272). However, at 298, Hayne and Heydon JJ (Gleeson CJ agreeing) said that the law as it stands does not permit any relaxation of the traditional rules merely on the ground that the particular witness's credibility is inextricably linked with the principal issue in the case.

40 The alleged statement by TR to MP satisfies both of the collateral evidence tests. First, whether TR told MP the day before the offences that she intended to engage in consensual sexual activity with the complainant and the applicant is not relevant to the discrete issue in dispute - namely, whether the complainant consented to the applicant masturbating him and sucking his penis. It is not probative of the issue of consent on the part of the complainant. For this reason, it is not a matter which could have been led by the defence as part of its case. Secondly, because it is incapable of going to the proof of the fact in issue, defence counsel could only have sought to lead the evidence from MP in order to impugn TR's credit as a witness.

41 Again, the trial Judge was correct to rule as he did. This ground must also fail.

Ground 3: Honest and reasonable but mistaken belief

42 Following his charge to the jury and after they had been invited to retire, the trial Judge asked both counsel if there was any matter of law that they wished to raise with him. Neither counsel raised any matter. Then, before adjourning to await the return of the jury, his Honour stated (t/s 222):

"I want to place on record that I deliberately did not give the jury a direction on the issue of mistake, section 24, because I don't think it arises in this case. It is honest and reasonable but mistaken belief, I should say. So can I suggest to counsel that we adjourn and await the return of the jury."

43 The applicant relies partly on the evidence of a defence witness, JJM, in support of the submission that such a defence was open on the facts of the case. JJM was present at the house on the night of the 2001 offences. He had been invited by the occupants and arrived at about 5 pm. He had been drinking and smoking cannabis and passed out on the couch at about 10 pm, although in cross-examination he said he still remembered the evening quite well. Later in the night, about midnight or 1am, he was roused by TR who said "Come and have a look at this". He got up and followed TR to the back room, where he saw the complainant and the applicant on the bed. The complainant was lying on his back with his head slightly propped up with a pillow and the applicant had his head between the complainant's legs. The complainant's legs were wrapped around the upper part of the applicant's torso. He could not see what the applicant was doing because the complainant's thigh was in the way. It was quiet, in that "[t]here wasn't any screaming going on". He observed for 5 to 10 seconds. TR was giggling and JJM went back into the lounge room and sat down. Later, he went home.

44 In cross-examination, he denied giving evidence to try and help the applicant and said that when he heard that the applicant had been charged, he did not go to the police and make a statement because he thought it was an "easy case" and that the applicant "would have got off it straightaway".

45 The respondent submits that none of the evidence raises any issue of honest and reasonable but mistaken belief as to consent and there was no scope for leaving such a defence to the jury.

46 Section 24 of the Code provides the defence of honest and reasonable but mistaken belief:

"A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.

The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject."

47 In cases where the prosecution is required to prove an absence of consent, there must be some evidentiary basis for the defence of honest and reasonable but mistaken belief before it can be left to the jury. Once the defence is properly raised, the burden of proof lies with the prosecution to negate it.

48 In relation to both incidents, the evidence of the complainant and that of the applicant are starkly contrasting in relation to the issue of consent. In relation to the 2001 incidents, neither the evidence of TR nor JJM adds

anything of significance to the issue. TR's evidence was that she heard the complainant say, "I don't like that. I like women. Leave me alone." Her evidence of the applicant's response "The little cunt's liking it" is, in my opinion, irrelevant to the issue of consent. While JJM gave evidence that he didn't hear any screaming, he also said he only watched for 5 to 10 seconds.

49 In my opinion, the evidence on either version left no scope for any sensible application by the jury of s 24 of the Code. If the jury accepted, beyond reasonable doubt, the evidence of the complainant, a conviction was inevitable. If, on the other hand, they accepted the entirely different evidence of the applicant, or were not satisfied beyond reasonable doubt as to its untruth, an acquittal was inevitable. There was no scope for a finding of honest and reasonable mistake. The trial Judge was quite correct to take that view, a conclusion which is reinforced by the fact that neither counsel suggested it was a live issue.

51 I would consequently refuse the application for leave to appeal against conviction.

52 PULLIN JA: I have read the draft reasons prepared by Roberts-Smith JA. I agree with those reasons and have nothing to add.

• Ground 1: Conversation with JM
• Ground 2: Collateral evidence
• Ground 3: Honest and reasonable but mistaken belief
• Conclusion