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[1998] HCA 21
High Court of Australia
1998-04-01
Callinan JJ, Hayne JJ, Gaudron J
Original judgment source is linked above.
High Court of Australia Gaudron, McHugh, Kirby, Hayne and Callinan JJ Gipp v The Queen [1998] HCA 21
The following written reasons for judgment were published: -
1 April 1998 Gaudron, McHugh, Kirby, Hayne and Callinan JJ
The Court announced that the appeal was allowed (McHugh and Hayne JJ dissenting) and that reasons for judgment would be published presently.
On 1 April 1998, the Court pronounced orders allowing the appeal in this matter, setting aside the order of the Court of Appeal of Queensland, and in lieu thereof, quashing the appellant's convictions and ordering a new trial on counts 3, 4, 5, 6 and 7 of the indictment presented against him in the District Court of Queensland on 4 March 1996. I now set out the background facts and my reasons for participating in that order.
The appellant was indicted on seven charges involving the sexual abuse of his step-daughter. There were four charges of unlawful and indecent assault, which offences were alleged to have occurred, respectively, on 24 December 1982, on a date unknown between 9 and 25 December 1983, on a date unknown between 13 December 1985 and 23 January 1986 and on 11 May 1986. There were also three charges of rape. Those offences were alleged to have occurred, respectively, on a date unknown between 13 December 1985 and 23 January 1986, on a date unknown between 12 December 1986 and 1 February 1987 and on a date unknown between 9 December 1988 and 31 January 1989. The appellant pleaded not guilty to all charges.
The prosecution case consisted, in the main, of the uncorroborated evidence of the complainant. Some aspects of her evidence were open to criticism. Her evidence relating to the first two counts of unlawful and indecent assault did not accord with her earlier evidence at committal proceedings and, in consequence, the prosecution "withdrew" those counts from the jury. Moreover, she admitted that she had perjured herself at the committal proceedings by denying that she had been convicted of a drug offence and, also, by denying that she had smoked marijuana. And she readily acknowledged that she had not complained to police until approximately six years after the last of the offences charged.
The appellant gave evidence denying that he had ever behaved improperly towards the complainant. Additionally, it was argued on his behalf that it was highly improbable that there was any indecent assault as alleged on 11 May 1986. That was the only specific date alleged for any of the counts left to the jury. As it happens, 11 May 1986 was Mother's Day and, also, the day on which the complainant was admitted to hospital with acute appendicitis. She gave evidence that, on that day, her mother, her aunt and grandmother went to bingo "at about lunchtime" and that, thereafter, she was indecently assaulted by the appellant who later took her to hospital. She said in her evidence in chief: " he took me upstairs and he was rubbing his penis on my vagina. I was in heaps of pain. I was - that was late in the afternoon and he took me to the hospital after he'd finished."
On the other hand, the appellant and the complainant's mother each gave evidence that the appellant took the complainant to hospital when, or just before, the complainant's mother left for bingo with the complainant's aunt and grandmother. The complainant's mother placed the time at "about 12 o'clock", indicating that bingo started at 1.30 pm. That account was, to some extent, borne out by medical records which reveal that the complainant was seen by a doctor at the hospital to which she was taken at 12.50 pm. The records do not reveal the precise time that she arrived.
Except for the two counts which were "withdrawn" from the jury, the appellant was convicted on all counts. There were some unsatisfactory features of the trial. As already mentioned, the prosecutor "withdrew" the first two counts from the jury. More precisely, he purported to enter a nolle prosequi to those charges, a course which, it is conceded by the respondent, was not then permitted [1] . Of more concern, the evidence of the complainant with respect to those counts was left before the jury with no explanation and with no indication, either from counsel or the trial judge, that it was inconsistent with the complainant's earlier evidence. The jury were simply instructed that those counts had been withdrawn and that there was no need to deliver a verdict on them.
General evidence of sexual abuse on occasions other than those charged does not have that special probative value which renders evidence admissible as "similar fact" or "propensity" evidence. And in this case, there was no feature of the kind present in R v Ball [10] that made it directly relevant to the question whether the appellant was guilty of the offences charged. Thus, unless there was some subsidiary issue in the trial to which it was relevant, the evidence of general sexual abuse was not admissible.
In cases of child sexual abuse, the defence case may be conducted in such a way as to raise an issue to which prior abuse is relevant. As pointed out by McHugh and Hayne JJ in this case, evidence of prior sexual abuse may explain lack of surprise or failure to complain. If they are issues in the trial, evidence of general sexual abuse is relevant and admissible. But they can only be made issues by the way in which the defence case is conducted. And they were not made issues in this case. More precisely, they had not been made issues when the evidence of general abuse was given by the complainant in chief and repeated in non-responsive answers in the course of her cross-examination. Thus, that evidence was not admissible.
The complainant's evidence with respect to the first two charges in the indictment is in exactly the same position as her evidence in chief and her non-responsive answers with respect to sexual abuse on occasions other than those charged: it did not have the special probative quality necessary to make it admissible as "similar fact" or "propensity" evidence; nor was it otherwise directly relevant to the question of guilt, and no subsidiary issue arose in the trial to which it was relevant.
The matters which have thus far been considered were not the subject of complaint at trial or in the Court of Appeal and, only indirectly, was complaint made in this Court. The same is true of the trial judge's direction that the jury need only be satisfied on the balance of probabilities with respect to the complainant's general evidence of sexual abuse, except that this issue was raised somewhat more directly in this Court. The only ground of appeal taken in the Court of Appeal was that the verdicts were "unsafe and unsatisfactory and against the weight of the evidence in particular the complainant's evidence which was uncorroborated". The single ground of appeal in this Court is that the Court of Appeal "failed to apply, or incorrectly applied, the principles which govern an appellate Court's assessment and determination of whether a verdict is unsafe and unsatisfactory".
In the main, the appeal to the Court of Appeal was argued by reference to the evidence of events on 11 May 1986, the day on which the complainant was admitted to hospital with acute appendicitis. However, attention was drawn to the complainant's admission of perjury at the committal proceedings, the unsatisfactory nature of her evidence with respect to the counts "withdrawn" from the jury and the course taken with respect to those counts. And the respondent's argument drew attention to the general evidence of sexual abuse "occurring on a regular weekly basis", extending back to a period before the complainant and her family moved to Queensland.
The appeal to the Court of Appeal was dismissed. Davies JA, with whom Fitzgerald P and de Jersey J agreed, said of the events of 11 May 1986 that "the hospital records were not necessarily inconsistent with [the complainant's] evidence" and that "the jury could have concluded that [she] was mistaken as to the times on that day but nevertheless have accepted her evidence as to the indecent assault and rejected the evidence of the appellant and his wife". It was also noted that "the jury had the advantage of observing each of [the witnesses] give evidence". Thus, it was held that "[t]here [was] no basis for concluding that [they] should have had a reasonable doubt [with respect to the events of 11 May]". The appellant subsequently appealed to this Court.
The expression "unsafe and unsatisfactory" has no very precise meaning. It is commonly used to indicate that, although there was evidence to sustain a verdict of guilty, the jury ought, nonetheless, have entertained a reasonable doubt as to guilt [11] . That is the sense in which it was understood by the Court of Appeal in this case. However, it, or an equivalent expression such as "unjust or unsafe", may be used to indicate that there is some defect in the summing up [12] or "some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled" [13] .
An examination of the whole of the evidence does, in my view, lead to the conclusion that there is no necessary inconsistency between the hospital records and the complainant's evidence with respect to the events of 11 May 1986 and that, notwithstanding the difficulties associated with her evidence, the jury was not bound to have entertained a reasonable doubt as to guilt. Reference has already been made to those difficulties. It is sufficient to observe that they were not such that a jury could not accept her evidence relating to the offences upon which the appellant was convicted. So far as concerns the events of 11 May 1986, the complainant referred in her evidence in chief to the relevant events occurring "late in the afternoon". However, she said in cross-examination that her mother, aunt and grandmother left at lunch time, that she then got up from her bed and hid under the house, although not for very long, was then taken to the bedroom, indecently assaulted, and after lying there for a little while, taken to hospital. There was nothing inherently improbable in that account. And as the appellant's evidence was that it only took five or ten minutes to get to hospital, it did not necessarily conflict with the medical records.
Although an examination of the evidence does not disclose that the verdict was unsafe or unsatisfactory in the sense that the jury should have had a reasonable doubt with respect to the charge relating to events on 11 May 1986, it clearly reveals that there was evidence before the jury of offences other than those upon which they had to determine the appellant's guilt or innocence. Specifically, there was the evidence given by the complainant with respect to counts 1 and 2 and her general evidence of having been sexually abused from the age of four. That would have been apparent to the Court of Appeal had the whole of the evidence been examined. And because the evidence to which reference has been made is admissible only in limited circumstances or for limited purposes, an examination by the Court of Appeal of the transcript would necessarily have led it to peruse the trial judge's summing up to see what, if any, direction had been given with respect to that evidence.
Even if the Court of Appeal had come to the view that, no objection having been taken, no miscarriage of justice was occasioned by the evidence with respect to the first two counts being left before the jury or by the receipt of the complainant's general evidence of sexual abuse, it could not in my view have reached the same conclusion with respect to the trial judge's direction relating to the complainant's evidence that she had been abused from the age of four. The bare direction to the jury that they had only to be satisfied with respect to that evidence on the balance of probabilities was erroneous and dangerously so. It left open the possibility that the jury might reason from a finding, on the balance of probabilities, that there was a relationship involving regular sexual abuse, that the appellant was guilty of the specific offences charged.
Had the Court of Appeal been aware of the trial judge's direction with respect to the complainant's evidence of regular sexual abuse, it would inevitably have concluded that there was a substantial possibility that the jury was mistaken or misled in the manner in which they reached their decision and that, in that sense, the appellant's convictions were unsafe and unsatisfactory. Because that did not occur, it must be concluded that the Court of Appeal failed to apply the principles which govern an appellate court's assessment of whether a verdict is unsafe and unsatisfactory. And it is for that reason that I joined in the orders made on 1 April 1998.
Before leaving this matter, it is appropriate to note two other matters. First, were I of the opinion that, given the limited nature of the argument in the Court of Appeal, it could not be said that it adopted an incorrect approach in considering whether the convictions were unsafe and unsatisfactory, I would, nonetheless, grant leave to the appellant to amend his grounds of appeal and allow the appeal. In this respect, it is sufficient to note that, when an appeal is lodged, the entire matter is before the court to which the appeal is brought and, unless there is some statutory provision to the contrary, that court "can entertain any matter, however arising, which shows that the decision of the Court appealed from is erroneous" [16] .
Pursuant to the grant of special leave, Gregory Bernard Gipp (the appellant) appeals against an order of the Court of Appeal of Queensland dismissing his appeal against convictions on two charges of indecent assault and three charges of rape of his step-daughter (the complainant). The question for determination in the appeal is whether the convictions of the appellant should be set aside because they are unsafe or unsatisfactory or because a miscarriage of justice has occurred.
In our opinion, having regard to the conduct of the trial, the convictions are not unsafe or unsatisfactory. Nor was there any miscarriage of justice.
The complainant is the step-daughter of the appellant who married her mother in 1975. At the time, the complainant was three years old. The family lived in Victoria initially but moved to Queensland in about 1979.
The complainant gave general evidence that her step-father had sexually assaulted her when she was four years of age and that the assaults had continued until she left home at the age of sixteen. Only seven of the incidents occurring during this long period were the subject of the charges in the indictment. Four of these charges were for indecent assault; three were for rape. The seven offences allegedly occurred between December 1982, when the complainant was ten and January 1989 when she was sixteen. During the trial, the Crown entered a nolle prosequi in respect of counts 1 and 2 of the indictment. These counts alleged offences of indecent assault committed in December 1982 and 1983, respectively.
Counts 3 (indecent assault) and 4 (rape) arose out of an incident which allegedly took place between dates in December 1985 and January 1986 when the complainant was thirteen years old. She alleged that she was lying on her bed when the appellant came into her room and told her that he wanted "a rub" (a term allegedly used by the appellant to describe a practice of rubbing his penis outside her vagina). He told her to go into his bedroom. The complainant went into the bedroom and laid down on the bed. The appellant undressed her and put his fingers inside her vagina (count 3) and said he thought she was ready. He then said "would you like a fuck?" and got on top of her and put his penis inside her (count 4). He ejaculated on the complainant's stomach.
Count 5 alleged an indecent assault which the complainant says she recalls because on that day she was admitted to hospital for an emergency appendectomy. She alleged that the assault took place between 12 noon when her mother, grandmother and aunt left the home to go to a bingo game and the time when the appellant took the complainant to the hospital that afternoon. Before the three women left, the appellant indicated that he wanted "a rub". The complainant refused, saying that she was in a lot of pain. After her mother had left, the appellant found the complainant hiding under the house. He took her upstairs and rubbed his penis against her vagina until he ejaculated. He then took her to the hospital where she had an emergency appendectomy that afternoon.
Count 6 alleged a rape occurring between December 1986 and February 1987, when the complainant was fourteen years old. The complainant testified that she came home from the beach with her boyfriend and found the appellant alone in the house. The appellant told the complainant to send her boyfriend home, which she did. He then asked her if she felt like "a rub". The appellant made her get down on the floor of the lounge room, take off her pants and get on her hands and knees. He then had intercourse with her from behind. The appellant said he wanted to have intercourse that way because he had sunburn on his legs and another position would hurt his legs.
Count 7 alleged a rape occurring between December 1988 and January 1989 when the complainant was sixteen years old. She said that she had been with a friend who lived next door and came home to get a jumper. The appellant was on the lounge. He asked her if she would like "a fuck". The complainant said, "No". The appellant persisted. Eventually, he took her into his bedroom, took off her pants, and had intercourse with her against her will. The complainant said that the appellant ejaculated inside her, which upset her because she feared becoming pregnant. She called him a bastard. Shortly after this incident, she went to live with her aunt in Melbourne.
The complainant did not complain of any of these incidents until 1991 when she told her boyfriend. However, she gave evidence that the appellant had sexually molested her for many years prior to the incidents, the subject of the indictment. She said that she told her younger sister about these sexual assaults when she was ten and her sister was eight years old. Apparently the sister has no recollection of such a complaint. The complainant explained the absence of a complaint by saying that it was not something that she could talk to people about, "I've grown up with it. I thought dads did that to little girls, that's what fathers and daughters did". Somewhat inconsistently with this belief, she also said that she didn't want her "nanna" to know because she knew that she would move out of the house and thought that her mother "couldn't live with nanna not being there".
About early 1992, the complainant began to see a counsellor concerning emotional problems arising out of the sexual abuse but discontinued the counselling. In 1995, she began to see a new counsellor which eventually led to police laying the present charges in that year.
The principal witnesses at the trial were the complainant, the appellant and the complainant's mother. The complainant's evidence was uncorroborated. The appellant denied the charges and all allegations of sexual misbehaviour. The evidence of the complainant's mother, if correct, supported the appellant's claim that no sexual offence took place on the day that the complainant went to the hospital. The mother testified that the appellant left for the hospital with the complainant before the three women left for the bingo game. The hospital records indicated that the complainant was seen by a doctor at the hospital at 12.50 pm.
The jury convicted the appellant on the five counts left to them. He was sentenced to ten years imprisonment on each count of rape and five years imprisonment for each count of indecent assault, the latter sentences to be served concurrently with the rape sentences.
In the Court of Appeal, counsel for the appellant contended that his convictions were unsafe and unsatisfactory. In support of this ground, he relied on the following arguments:
The Court of Appeal dismissed the appeal. Davies JA gave the leading judgment. Fitzgerald P and de Jersey J agreed with his reasons for judgment. After reviewing the evidence, Davies JA said that the appellant's main argument in support of the claim that the convictions were unsafe or unsatisfactory related to count 5 which concerned the indecent assault on the day that the complainant went to hospital. His Honour said:
Those records [ie the hospital records] show that the complainant was first seen by a doctor at 12.50 pm on that day. However, the complainant had said that the appellant's wife left at lunch time and she was generally unable to be specific as to times so that in my view the hospital records were not necessarily inconsistent with her evidence. Alternatively, the jury could have concluded that the complainant was mistaken as to the times on that day but nevertheless have accepted her evidence as to the indecent assault on that day and to have rejected the evidence of the appellant and his wife.
In the end, in my view, the jury were left with a conflict of evidence between the complainant on the one hand and the appellant and his wife on the other. In resolving that, the jury had the advantage, which this Court lacks, of observing each of them give evidence and from that observation forming a view as to their credibility. There is no basis, in my view, for concluding that the jury should have had a reasonable doubt on that question.
In our opinion, his Honour's assessment of the evidence was correct. In cross-examination of the complainant, counsel for the appellant attempted to commit the complainant to a time frame of either one or two hours for the events before the trip to hospital. The extent to which the complainant agreed with the time frame and committed herself to it appears minimal. In any event, the hospital records which place the time at which the complainant saw a doctor as being 12.50 pm do not directly contradict the complainant's evidence.
While the complainant's evidence was contradicted by the evidence of her mother on the sequence of events that day, the jury were not bound, acting reasonably, to accept the mother's evidence. The mother said that on this particular day she remembered the appellant leaving in a car to take the complainant to the hospital at the same time as she and the other women left for bingo. If the mother's evidence is correct, the events did not take place as the complainant has described them. However, it was open to the jury to reject the mother's testimony. She and three of her children were still living with the appellant while the complainant had left home at the age of sixteen, six years before the trial took place. The jury, who saw the witnesses, may have taken the view that the mother was not so impartial a witness that her account should be preferred to that of the complainant. In any event, the jury may have thought that the mother's account was inaccurate given that the incident had happened ten years before and there was little reason for her to remember it. On her own account, she obviously had not been worried enough about her daughter's health to go with her to hospital, preferring to go off to bingo with her mother and sister. The mother's evidence was often hesitant and was inconsistent with her evidence at the committal hearing on issues which should have been easy to remember such as sleeping arrangements in the household.
Davies JA also rejected the claim that the complainant's perjury made her an unreliable witness. His Honour said that although perjury is a serious offence, "the jury was entitled to consider her failure to be truthful about how many times she had smoked marijuana did not affect her credibility on the central issue in this case". His Honour rejected the contention that variations in the complainant's evidence made the convictions unsafe or unsatisfactory. His Honour said that none of the variations "were substantial". In relation to the variations in the complainant's evidence concerning when the appellant had first said words to the effect: "Would you like a fuck", his Honour said that "having regard to the time which has elapsed between the events which occurred and the time when she gave evidence, this was of no great significance."
In our opinion, having regard to the arguments put to the Court of Appeal, that Court was correct in rejecting the appellant's appeal. The reasons given by Davies JA were no doubt brief. But they were clearly correct. Nothing is to be gained by setting out in greater detail the reasons which lead us to the same conclusion as his Honour reached.
If the appellant's argument in this Court had followed the course taken in the Court of Appeal, not only would his appeal have been dismissed but a grant of special leave to appeal would almost certainly have been refused. Between the Court of Appeal and the hearing in this Court, however, the appellant instructed new counsel who has radically transformed the appellant's argument that his convictions are unsafe or unsatisfactory. In this Court Mr Whitford, who had not appeared at the trial or in the Court of Appeal, contends that two errors occurred during the trial which make the convictions of the appellant unsafe or unsatisfactory and, in any event, a miscarriage of justice.
First, he contends that the trial was flawed in that, contrary to then provisions of the Criminal Code Act 1899 Q (the Criminal Code), the trial judge permitted the Crown to enter a nolle prosequi in respect of two counts in the indictment. At that time, the Crown only had power to enter a nolle prosequi in respect of an indictment, not particular charges in the indictment. Mr Whitford contends that the entry of the nolle prosequi deprived the appellant of the benefit of acquittals on the two counts and the opportunity to comment to the jury on the inconsistencies in the evidence of the complainant in respect of those counts. Second, he contends that the trial judge's directions in respect of a general history of sexual interference concerning incidents other than those that were the subject of the charges were so inadequate as to prejudice the fair trial of the action.
No objection to these "errors" was raised at the trial or in the Court of Appeal of the Supreme Court of Queensland. To circumvent this difficulty, Mr Whitford contends that, where a convicted person alleges that his or her conviction is "unsafe or unsatisfactory", a court of criminal appeal has a duty to examine the record for errors that are "manifest on the face of the record". He contends that a trial that contains legal error manifest on the face of the record is unfair and constitutes a "miscarriage of justice" within the meaning of that term, as it is used in the common form criminal statutes. It follows that, if the trial has been unfair in this sense, it does not matter that the accused did not object to the admission or form of irrelevant or prejudicial evidence or to a particular direction or raise a legal argument or that there was sufficient and satisfactory evidence on which the jury could convict the accused. He submits that:
the duty of an appellate court to be vigilant and to conduct its own independent inquiry must extend to an assessment not only of the evidence but also of the circumstances attending the conduct of the trial. It must be satisfied not only that upon the whole of the evidence that it was reasonably open to the jury to be satisfied beyond reasonable doubt that the accused was guilty, but it must also be satisfied that there is nothing apparent on the record which constitutes a failure in observing the conditions essential to a fair trial or which raises a substantial possibility that the jury may have been mistaken or misled.
That being so, he contends that in the present case the Court of Appeal failed to apply or incorrectly applied the principles which govern a determination of whether a verdict is unsafe or unsatisfactory.
The test for determining whether a verdict is unsafe or unsatisfactory
In our opinion, the test suggested by Mr Whitford for determining whether a conviction is unsafe or unsatisfactory or constitutes a miscarriage of justice must be rejected. It is unsupported by authority and would place an inordinate burden on a court of criminal appeal. Moreover, such an approach would be contrary to the adversarial nature of our legal system, which relies on an impartial judge as arbiter of the issues and which requires that the parties determine which issues will be put before a court for decision.
The prevailing test for determining whether a verdict is unsafe or unsatisfactory was authoritatively formulated in M v The Queen [19] by Mason CJ, Deane, Dawson and Toohey JJ. Their Honours said the correct test was whether the Court thought that upon the whole of the evidence it was "open to the jury" to be satisfied beyond a reasonable doubt that the accused was guilty. This test was re-affirmed in Jones v The Queen [20] . It places a duty on a court of criminal appeal to undertake an assessment of the evidence to determine whether a conviction was unsafe or unsatisfactory. But that does not mean that the court is obliged to read every word of the transcript and exhibits. The test laid down in M v The Queen was formulated against the background of the adversarial system of justice, a system heavily dependent on the parties to identify the issues and the evidence relevant to those issues. It is impossible to think that the majority in M v The Queen intended to impose a duty on courts of criminal appeal to examine often innumerable appeal books, often containing hundreds and sometimes thousands of pages of evidence and exhibits, and evaluate evidence which the parties have not thought fit to draw to the court's attention. Still less is there any reason to suppose that the majority in M v The Queen intended to impose a duty to examine the transcript looking for issues arising from the "circumstances of the case" which have not been raised by the parties.
If the contention of the appellant were upheld, the character of courts of criminal appeal would change from that of courts of appeal to that of tribunals for the judicial review of convictions. As long as the fundamental premise of the criminal justice system is that criminal proceedings are adversarial in nature, it is not possible to conclude that a court of criminal appeal has erred merely because it failed to identify an error in the trial which the accused did not rely on as a ground of appeal.
A criminal trial under the common law system remains today, as it has been for many centuries, based on the theory that it is an adversarial contest between the Crown and the accused. Each party gathers its own evidence, tenders its own evidence and cross-examines the evidence of the opposite party. Each party selects the grounds upon which it relies and argues them without assistance from the court. For its part and subject to statutory exceptions, the court's role is generally limited to determining what legal rules govern the issues selected by the parties and whether the evidence and contentions of the parties are within those rules.
In a criminal appeal, the adversarial nature of the proceedings is maintained. The appellant frames the issues for determination by the appellate court by selecting the grounds upon which he or she relies to quash a conviction or vary a sentence or, in the case of a Crown appeal, the grounds upon which it relies to increase the sentence. The court plays no part in framing the grounds of appeal. As Mason CJ and Brennan J pointed out in Pantorno v The Queen [21] :
In principle, the notion is erroneous that a court must tell the parties what the law is. A court is under no duty to a party to advise him how to present his case; the court's duty is to give him a reasonable opportunity to present his case. These words were uttered in relation to the duty of a court in a criminal trial but they are equally applicable to an appeal against a criminal conviction. Their Honours went on to say [22] : The responsibilities of counsel cannot be assumed by the court, for its even-handedness would be compromised by assuming a responsibility for the conduct of the case of one of the parties. 1. (1989) 166 CLR 466 at 472-473. 2. Pantorno (1989) 166 CLR 466 at 473.
It is true that criminal proceedings are not wholly adversarial in nature. One important exception to the adversarial nature of criminal proceedings is that a trial judge has a duty to direct the jury on any matter that could result in the acquittal of the accused even though the accused deliberately refuses to argue the point [23] . A trial judge also has a duty "to ensure that rules made for the protection of an accused person do not constitute a trap for those who are unrepresented and ignorant of them" [24] . In Pantorno [25] , Mason CJ and Brennan J also said that a trial judge has a duty to keep out inadmissible evidence although we doubt that their Honours intended it to apply in respect of all inadmissible evidence. Another exception to the adversary system is that the Crown has a duty to draw the attention of the trial judge and to courts of criminal appeal to a matter that might affect the criminal liability or sentence of the accused, if the Crown is aware of the matter.
Ordinarily, an appeal raises the correctness or otherwise of the decision under appeal in the light of the evidence and issues as they were before the court whose decision is in question. (Emphasis added.) 1. (1989) 167 CLR 259 at 298.
(1) The Court on any such appeal against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal.
(2) Subject to the special provisions of this Chapter, the Court shall, if it allows an appeal against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered.
Pantorno is explicable on the ground that the point argued in this Court was implicitly raised, although not articulated, before the Court of Criminal Appeal. No such explanation is available in respect of Giannarelli v The Queen [38] where the Court quashed a conviction on a ground that had not been taken at the trial or in the Court of Criminal Appeal. None of the judgments dealt with the question of the Court's jurisdiction to quash a conviction in these circumstances. However, both Gibbs CJ and Deane J said that it would only be in exceptional circumstances that the Court would grant special leave to appeal in respect of a point raised for the first time in this Court. Gibbs CJ said that [39] :
It is of course only in an exceptional case that this Court will give special leave to appeal from a decision of a Court of Criminal Appeal affirming a conviction when the point that the applicant seeks to raise in attacking the conviction was not taken either at the trial or in the Court of Criminal Appeal. 1. (1983) 154 CLR 212. 2. Giannarelli (1983) 154 CLR 212 at 221.
In Giannarelli [40] , the Court found the circumstances were sufficiently exceptional to require a grant of special leave. Deane J said:
There are three features of the applications which ordinarily would combine to preclude the grant of special leave to appeal on a question of admissibility of evidence. Those features are: the failure to object to the admission of the evidence when it was tendered; the failure subsequently to seek a direction to the jury that the evidence be disregarded; and the failure to raise the question of the admissibility of the evidence upon the appeal to the Victorian Court of Criminal Appeal. The present circumstances are, however, exceptional in a number of respects. 1. (1983) 154 CLR 212 at 230-231.
Notwithstanding the orders made in Giannarelli, we would wish to hear full argument on the issue before setting aside a judgment of a State or federal court on a ground that was not raised in the courts below. Whether the appellate jurisdiction of this Court extends to setting aside a judgment of a State or federal court upon a ground not argued in those courts is a question of far reaching constitutional importance. It is a question on which the States as well as the Commonwealth have a vital interest, affecting as it does the orderly administration of justice in the State and federal systems. However, because we are of opinion that the new grounds relied on by Mr Whitford would not have required the Court of Appeal to set aside the appellant's convictions, it is unnecessary to say anything further about the matter, particularly since the States and the Commonwealth have not had the opportunity to make submissions on this important issue.
Neither statute nor common law principle authorised the entry of a nolle prosequi in respect of the first two counts in the indictment. At that time in Queensland, the Crown could enter a nolle prosequi in respect of an indictment only. It had no authority to enter it in respect of individual counts in the indictment. However, the Crown submitted that this practice was in fact usual in Queensland. Since the trial, the Criminal Code has been amended to allow such a course (s 563(2)).
Counsel for the appellant did not object to the entry of the nolle prosequi. Indeed, he seems to have consented to that course. Both counsel agreed that nothing needed to be said to the jury other than that there was no need for a verdict on the two counts, a course which the learned trial judge followed. No verdict was entered in relation to the counts. However, Mr Whitford contends that the entry of the nolle prosequi caused unfairness to the appellant because the evidence led in relation to counts 1 and 2 showed that the complainant was confused about the dates of the events described and that this confusion damaged her credibility as a witness. He contends that her confusion and resulting inconsistencies in her evidence rendered the convictions on the remaining counts unsafe and unsatisfactory. But as we have indicated this argument was examined by the Court of Appeal and rightly rejected.
It is impossible to conclude that the entry of a nolle prosequi in respect of counts 1 and 2 unfairly prejudiced the appellant or that the inconsistencies in respect of the dates make the convictions on the remaining counts unsafe or unsatisfactory. It is unsurprising that the complainant confused the exact dates of events which took place years before when she was very young and which were, so she alleged, only two of many incidents occurring over a long period. The complainant said in evidence, "It was a long time, this is like nine, ten years ago. I said I wasn't sure on my dates. I had to go through with the police prosecutor to work out dates." It was open to a reasonable jury to find that her confusion - inconsistencies, if you like - did not prevent them from believing her account of the remaining charges as credible.
The judge should have left counts 1 and 2 to the jury or the nolle prosequi should have covered all counts and resulted in the jury's discharge. However, counsel for the appellant consented to the course taken, and the matter raises no special leave point. No verdict was taken on the two counts. If the Crown should now attempt to prosecute those counts, a judge would have no alternative to staying the prosecution as an abuse of process.
Mr Whitford contended that the fair trial of the appellant was fundamentally flawed by reason of the admission of general evidence of a history of sexual molestation of the complainant by the appellant and the failure of the trial judge to direct the jury that they could only use this evidence if they were satisfied that it had been proved beyond reasonable doubt. He contended that whether the evidence was admissible as propensity evidence or to show the relationship between the parties, it was so prejudicial that it was analogous to "those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt [41] ".
The complainant gave evidence in very general terms of a history of sexual interference which was not confined to the matters alleged in the indictment. She alleged that the interference had started before and continued on a regular basis after the family arrived in Queensland. In evidence-in-chief, the complainant was about to testify as to the first of the incidents which were the subject of charges (count 1) when the Crown Prosecutor said to her:
Firstly, before we get to that, had there been some pattern of behaviour that had occurred from when you came up from Victoria? - It was regular. He was sexually molesting me.
Yes, what do you mean by that? - Well, no penetration. He was using his penis. He was rubbing his penis between my legs until he ejaculated.
This was before you came to Queensland? - That was before. That was in Victoria.
Yes, and did that continue after you arrived in Queensland? - It continued in Queensland. It didn't happen when we lived with his parents. It wasn't until we moved to Silver Bridle.
Counsel for the appellant did not object to this evidence. It was admissible to show the relationship [42] which existed between the parties and to explain why the complainant so readily complied with the various demands of the appellant. Without evidence of the background and the continuing nature of the conduct of the appellant, the evidence of the complainant may have seemed "unreal and unintelligible" [43] . Without knowing the course of the relationship, the jury may have had great difficulty in accepting that the incidents could have occurred in the way that the complainant described [44] . Thus, the complainant described the events concerning the offence the subject of count 1 as follows:
We were all sleeping in the same room and we had all bunk beds in the room. We'd been in there for maybe half an hour and [the appellant] had come in and asked me to come and squeeze blackheads on his back and it was there that -
Yes? - He told me to come into the bathroom. When I went into the bathroom he told me to take down my pants. He'd taken his pants off and was sitting on the edge of the bath and he made me sit on top of his lap with no pants on. He put his penis between my legs and was rubbing my vagina until he ejaculated.
Yes. What happened then? - He told me to - or he got up and got a towel and wiped himself clean and he gave me the towel. He had a shower and told me to have a shower when he's finished and I went and laid out back in the lounge room on the floor and I just remember my mum coming home and waking me up off the floor.
There is also overall evidence of ongoing conduct by the accused over many years That evidence of general behaviour is led to show the nature of the relationship between the complainant and the accused, rather than present a picture of isolated events from time to time. There is no need for you to be satisfied beyond reasonable doubt of those background facts because they are given generally, provided that you accept the complainant's account that it occurred, but when you come to consider any count on the indictment you must be satisfied beyond reasonable doubt that the Crown has proven an incident as alleged by the complainant on the day alleged or within that time scale which is alleged that they're in. (Emphasis added.)
No doubt the evidence of general behaviour, if accepted, proved the commission of other criminal acts. But it was not tendered as propensity evidence. If the evidence had been tendered to prove propensity, it would have required careful direction in accordance with the principles emphasised by this Court on numerous occasions in recent years [47] . Moreover, as BRS v The Queen [48] shows, if evidence admitted for reasons other than propensity in fact reveals a criminal or reprehensible propensity on the part of the accused, a trial judge must carefully direct the jury as to the use which they can make of the evidence [49] . In BRS [50] , McHugh J pointed out:
If the evidence is admitted for a reason other than reliance on propensity, the judge must direct the jury that they can use the evidence for the relevant purpose and for no other purpose. In some cases, the judge may need to be more specific. He or she may need to direct the jurors that they cannot use the evidence for an identified purpose. If the evidence is admitted because the Crown wishes to rely on the accused's propensity as an element in the chain of proof, it is especially necessary that the judge give the jurors clear directions as to the manner in which they may use the propensity evidence. 1. See, eg, Pfennig v The Queen (1995) 182 CLR 461. 2. (1997) 191 CLR 275. 3. BRS (1997) 191 CLR 275 at 305-306. 4. (1997) 191 CLR 275 at 305.
In this case, the learned judge correctly directed the jury that the background evidence went to show the nature of the relationship between the appellant and the complainant so that they could understand the context of the incidents that were the subject of the charges. No doubt, it would have been better if his Honour had gone further and expressly told the jury that, if they found that there was a previous or continuing history of incidents, they were not to use that finding to reason that the accused committed the offences charged. But his Honour's failure to take that further step does not mean that he necessarily misdirected the jury or that the verdict is unsafe or unsatisfactory or that there has been a miscarriage of justice. Having regard to the conduct of the case and the rest of his Honour's summing up, there is no reason to suppose that the jury might have used the general behaviour evidence as propensity evidence. Neither counsel nor the judge suggested that course. Furthermore, the whole thrust of the summing up was that the jury had to be satisfied beyond reasonable doubt that the complainant's evidence in respect of each incident was reliable.
No doubt it would also have been better if his Honour had made no mention of the standard of proof when referring to the background evidence. But his Honour's statement was not a misdirection. It is the charge, not the surrounding facts, that must be proved beyond reasonable doubt. Sometimes, a fact may be so indispensable to a finding of guilt that it is necessary to direct the jury that that finding be proved beyond reasonable doubt even though that fact is not one of the ultimate facts that constitute the offence. But, as Dawson J pointed out in Shepherd v The Queen [51] where:
the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. That statement was made with respect to circumstantial evidence but is equally applicable to a case such as the present. 1. (1990) 170 CLR 573 at 579.
The evidence concerning the relationship of the parties in this case was not, as Mr Whitford's submission recognised, an indispensable link in a chain of reasoning leading to an inference of guilt. It was not, for example, evidence of the kind with which the House of Lords had to deal with in R v Ball [52] where the charge of incest between the dates alleged must have failed without proof that there had been a previous sexual relationship between the brother and sister.
Furthermore, the evidence of the previous and continuing history in this case was far removed from the kinds of propensity evidence that have attracted the stringent requirements of admissibility and direction imposed by common law doctrine. Propensity evidence of that kind usually refers to evidence that describes the manner in which a person commits a criminal or wrongful act or which shows that a person has a general disposition to commit crime or crime of a particular kind. Propensity evidence of that kind usually concerns crimes or wrongs committed against the person or property of a person other than the person whose property or person is the subject of the crime charged. It usually disadvantages the accused by introducing evidence from a third person which corroborates the complainant or by revealing that the accused has committed criminal acts or wrongful conduct of a similar kind on other occasions.
The other criminal conduct in the present case does not concern a third person. In that respect, the case is very different from BRS [53] where the Court held that a conviction was unsafe because the trial judge had failed to direct the jury as to the use that they could make of evidence of bad character which revealed a criminal propensity on the part of the accused (a schoolmaster). To rebut a claim of good character, the Crown had led evidence that the accused had engaged in improper sexual conduct with a schoolboy other than the complainant. The majority of this Court held that there was a real chance that, without a clear direction, the jury may have used the evidence of bad character not merely to rebut evidence of good character but to conclude that the accused had a propensity to engage in improper sexual activity with schoolboys and had given effect to it in his dealings with the complainant.
Nor is this a case where, in the course of committing wrongful acts other than those charged, the appellant used the same distinctive modus operandi as he did while committing the offences with which he was charged. It is true that the form of indecent assault seems to have always been what the complainant called "a rub". But for the purpose of propensity doctrine, that act itself was no more distinctive than if he had inserted his finger into the complainant's vagina. In any event, the use of a distinctive modus operandi is ordinarily of significance only where there is or are a victim or victims other than the complainant.
Furthermore, the evidence of general behaviour in this case hardly offends the policy reasons which courts and commentators have relied on to exclude propensity evidence. In Pfennig v The Queen [54] , McHugh J said:
Various reasons have been put forward to justify this exclusion. One reason is that it creates undue suspicion against the accused and undermines the presumption of innocence [55] . Another is that tribunals of fact, particularly juries, tend to assume too readily that behavioural patterns are constant and that past behaviour is an accurate guide to contemporary conduct [56] . Similarly, "[c]ommon assumptions about improbability of sequences are often wrong" [57] , and when the accused is associated with a sequence of deaths, injuries or losses, a jury may too readily infer that the association "is unlikely to be innocent" [58] . Another reason for excluding the evidence is that in many cases the facts of the other misconduct may cause a jury to be biased against the accused [59] . In the present case, for example, once the H evidence was admitted, it would require a superhuman effort by the jury to regard the appellant as other than a person of depraved character whose uncorroborated evidence, whether or not he was guilty, could not be acted upon except where it supported the prosecution case. Functional reasons also play a part in excluding evidence of bad character. Trials would be lengthened and expense incurred, often disproportionately so, in litigating the acts of other misconduct; law enforcement officers might be tempted to rely on a suspect's antecedents rather than investigating the facts of the matter; rehabilitation schemes might be undermined if the accused's criminal record could be used in evidence against him or her [60] . 1. (1995) 182 CLR 461 at 512-513. 2. Perry v The Queen (1982) 150 CLR 580 at 593-594, per Murphy J; R v Boardman [1975] AC 421 at 451, per Lord Hailsham; Piragoff, Similar Fact Evidence (1981), p 4. 3. Cowen and Carter, Essays on the Law of Evidence (1956), pp 144-145; Imwinkelried, The Use Of Evidence Of An Accused's Uncharged Misconduct To Prove Mens Rea: The Doctrines which Threaten to Engulf the Character Evidence Prohibition, Ohio State Law Journal, vol 51 (1990) 575, at pp 581-582 ; Ligertwood, Australian Evidence, 2nd ed (1993), pp 81-82; Palmer, The Scope of the Similar Fact Rule, Adelaide Law Review, vol 16 (1994) 161, at p 169 . 4. Perry (1982) 150 CLR 580 at 594, per Murphy J. 5. Perry (1982) 150 CLR 580 at 594, per Murphy J. 6. R v Bond [1906] 2 KB 389 at 398, per Kennedy J; Piragoff, Similar Fact Evidence, (1981), pp 4-5; Cross on Evidence, 2nd Aust ed (1991), par 21145; Ligertwood, Australian Evidence, 2nd ed (1993), p 81. 7. See Cross on Evidence, 2nd Aust ed (1991), par 21150.
It follows that that part of the summing up of which Mr Whitford complains contains no misdirection and did not require a further direction. Its effect on the fairness of the trial generally depends on all the circumstances of the case including the summing up generally and the manner in which the case was conducted.
The learned trial judge referred to the non-specific evidence of sexual molestation in a short passage which occurred in about the middle of his summing up. Up to that point, his Honour had dealt with the criminal convictions of the complainant in relation to drug possession and pointed out that these could be taken into account on the question of credit. His Honour had also discussed the complainant's admission of perjury and said:
She was prepared to lie on oath and it does raise the question if someone has done that once what are the limits; to what extent might she do it again? These are matters for you to consider.
His Honour then dealt in detail with the onus of proof and the issue of reasonable doubt:
Where that situation arises and there exists room for a reasonable inference consistent with the accused's innocence that is the one that you must draw rather than an inference consistent with his guilt because, as you have heard, the Crown, having brought these charges against the accused, has the onus of proof and has to prove its case beyond reasonable doubt and it must do so in respect of each and every count of the indictment.
If there exists a reasonable inference consistent with the accused's innocence then the Crown has not removed all reasonable doubt. A reasonable doubt is a doubt which you as jurors with your knowledge of people, awareness of the important function that you do exercise here, consider to be reasonable and not something light and fanciful. The practical result is that you must be sure of the accused's guilt before you may convict him.
You still must be satisfied on the Crown case that the complainant's account is truthful and reliable before you may convict.
His Honour then turned to the uncorroborated nature of the complainant's evidence and warned that:
In all cases of a sexual nature, whether the complainant is male or female, a child or mature person, it has been the practice, of course, based on some sorry experience in the past to warn juries that they ought to be slow to convict in the absence of corroboration. The warning is generally that it is dangerous to act without corroborative evidence.
Corroboration is simply evidence independent of the complainant tending to implicate the accused as the offender The courts have decided on this because there have been a number of injustices done, people wrongly convicted in the case of complaints of a sexual nature.
The difficulty is that complaints of that kind are very easy to make and have been made for all sorts of reasons, some for no reason at all, and they are impossible to refute because they have happened or they are alleged to have happened in circumstances where there cannot be witnesses
You may still convict even when there is no corroboration if you are still satisfied that the complainant's account is entirely safe to act upon without that corroboration. You can imagine that if a sexual offence is committed it would be wrong for a person to escape conviction simply because there was no witness to it, but you must be entirely satisfied of the honesty and reliability of the complainant before you act on that evidence alone. There are five counts which relate to specific events.
There then followed the passage in which the trial judge referred to the evidence of "general behaviour" to which Mr Whitford objects. Immediately after that passage, his Honour said:
You must be satisfied of those matters alleged in each count on the indictment before you may convict the accused. Each incident alleged must be proven separately and distinctly from other allegations. You have to compartmentalise the evidence in respect of each count. Your verdict on any one count does not determine the matter in respect of any other. You can convict on any count without necessarily reaching the same conclusion on others. You may, of course, acquit on any count without necessarily coming to the same conclusion on all others.
If you accept the evidence of the complainant you may yet acquit the accused on any count; for example, if you are not satisfied of the date of an incident or that the Crown has proved what it set out to prove or has not proved it clearly enough, but if you find that you do not believe [the complainant's] account in relation to any one incident as an honest account it would be dangerous for you to accept her evidence at all and you should acquit on all counts. (Emphasis added.)
Then after referring to the specific charges, his Honour again emphasised to the jury that they could not convict the accused unless they were convinced beyond a reasonable doubt as to the reliability of the complainant's account:
Now, as you've been told, the Crown case stands or falls depending upon your assessment of the complainant You may not properly convict the accused on any count unless you are convinced beyond reasonable doubt that her account is safe to rely upon.
Almost at the end of his summing up, his Honour said:
The Crown has the onus of proof, so if the evidence before you, including that of the accused, leaves you with a reasonable doubt as to the honesty and reliability of [the complainant's] account you must find the accused not guilty.
The jury retired at 4.20 pm. At 10.25 am the following day, the jurors indicated that they would like to hear "the summing-up again". His Honour did not accede to this request but gave the following direction among others:
The Crown case in respect of each count does depend entirely upon the evidence of [the complainant]. If her account is acceptable to you then there is evidence upon which you may convict on every count. If her evidence is not acceptable, and you have to be satisfied very clearly of her reliability before you may convict, if it is not acceptable to you you should, as a matter of caution, acquit.
The consequences of a conviction are severe. That is not a matter which you should take into account in itself, but it shows that you should be careful not to convict, particularly here where there is no corroboration, unless you are absolutely satisfied of the reliability of the girl's account. (Emphasis added.)
Overall, the judge emphasised the correct standard of proof at many points in his summing up. He gave particular attention to the prior conviction of the complainant, her admitted perjury, the danger of relying on uncorroborated evidence in sexual trials and the duty of the jury to acquit if they had any doubt about any of the charges. The judge put particular emphasis in his summing up on the fact that the jury had to be satisfied that the complainant's evidence was "entirely safe" to act upon; "you must be entirely satisfied of the honesty and reliability of the complainant"; "you may not properly convict the accused on any count unless you are convinced beyond reasonable doubt that her account is safe to rely upon".
Counsel for the appellant made no objection to the summing up. Nor did he ask the judge to give any further directions. And as we have already pointed out, no objection was taken in the Court of Appeal to the passage that is now claimed to have brought about unsafe or unsatisfactory convictions or a miscarriage of justice.
A further indication that the "general behaviour evidence" did not unfairly or improperly affect the trial is that little emphasis was placed on it during the trial. The Crown did not refer to or rely on it during its address to the jury, and the judge only referred to it in the one short passage to which we have referred. Counsel for the appellant, however, did seek to make some use of it. The thesis of his cross-examination was that the complainant had invented all the allegations against the appellant. He opened his cross-examination by putting to the complainant that she had "learnt those stories off by heart" and that she had "made those stories up". Later, he used the continuing history of "general behaviour" to put to the complainant that it was unlikely that any of these incidents could have taken place without anyone ever finding out about them:
See, you say certainly from the time, don't you, from the time you were first raped, that's the [AS] incident [Count 4], it happened weekly, right through until the last occasion, the [JP] incident [Count 7]? - It was just a regular basis. It was once a week, maybe twice a week.
Every time he touched you from [AS] it was a matter of rape, it wasn't just touching? - It was penetration, yes.
And no one ever stumbled across you or anything like that in all of that time in this weekly occurrence? - No
It simply didn't happen, did it? - It did happen.
Given the conduct of the case and the summing up of the trial judge, we think that there is not a real risk that the jury improperly used the "general behaviour" evidence to convict the accused. It was never put to the jury by the Crown or the trial judge that they were entitled to conclude that, if the appellant had interfered with the complainant in the past, that was a fact from which they could infer that the appellant was guilty of the offences with which he was charged. The learned judge limited the use of the "general behaviour" evidence to show the nature of the relationship between the appellant and the complainant. It obviously did not occur to counsel at the trial that this evidence could be used as proof of guilt rather than explanatory of the relationship of the parties. His failure to take any objection is a powerful factor for concluding that no miscarriage of justice is likely to have occurred in the case. The case was fought on credibility. With great respect to those who think differently, we cannot accept that the complainant's allegation of the appellant's "general behaviour" made the difference between conviction and acquittal. It is hardly to be supposed that the acceptance of her evidence to the beyond reasonable doubt standard turned on the fact that she added the "general behaviour" evidence to her evidence of the five specific incidents.
The Court of Appeal correctly applied the test for determination of whether a verdict is unsafe or unsatisfactory and it was clearly open on the evidence for the jury to be satisfied beyond a reasonable doubt that the accused was guilty. Furthermore, in the context of the trial and the entire summing up, neither the admission of the "general behaviour" evidence nor the judge's direction in relation to it make the convictions of the appellant unsafe or unsatisfactory or brought about a miscarriage of justice.
The prosecutor has now determined to withdraw counts 1 and 2. Those are the counts relating to 24 December 1982 and the period between 9 December 1983 and 25 December 1983, two counts of unlawful indecent assault. There will be no need for you to deliver a verdict in relation to those counts.
The appellant's objections to the procedures surrounding the variation of the indictment do not raise a case of manifest miscarriage of justice. Nor do they present such a radical departure from the legal requirements of a criminal trial as to deprive the appellant's trial of the elemental features prerequisite to a valid conviction. Despite the irregularities which occurred what was done was done with the consent of the appellant's trial counsel. It involved no forensic disadvantage to him. It remained open to him to criticise the complainant's credibility by reference to her testimony in relation to the first two counts, although they were "withdrawn". The course taken fell far short of involving a manifest miscarriage of justice. In the unlikely event that the appellant were ever again prosecuted upon the charges referred to in the first two counts of the original indictment it is unthinkable that proceedings on such charges would not be permanently stayed as an abuse of process. I would therefore dismiss this complaint as insubstantial. Accepting that an irregularity has been shown, it did not result in an actual miscarriage of justice calling for this Court's intervention.
The appellant, thirdly, complained of the way in which the prosecutor had adduced evidence of a general history of alleged sexual molestation extending beyond the specific incidents, the subject of the remaining counts. At the commencement of the complainant's evidence, she was asked a question which elicited a predictable answer: potentially of a highly prejudicial character (emphasis added):
All right. Now, during that period of time a number of incidents occurred with you and Mr Gipp? Yes.
Can you just describe initially what those incidents were when you first came to Queensland? What happened? Yes, there was a time in 1983 myself - we had a cousin's
Firstly, before we get to that, had there been some pattern of behaviour that had occurred from when you came up from Victoria? It was regular. He was sexually molesting me.
Yes, what do you mean by that? Well, no penetration. He was using his penis. He was rubbing his penis between my legs until he ejaculated.
This was before you came to Queensland? That was before. That was in Victoria.
Yes, and did that continue after you arrived in Queensland? It continued in Queensland. It didn't happen when we lived with his parents. It wasn't until we moved to [our house].
There were several other questions and answers to like effect. For example, during cross-examination, in response to a question relating to the first incident of digital and penile penetration, the following exchange took place: So - what, a three-year gap between the two incidents; is that right? Yes. It happened on a regular basis, like these - these aren't just the only ones that happened.
In the context of a trial, with evidence as brief and stark as this one, testimony of the foregoing kind had a clear potential to prejudice the fair trial of the appellant. Yet, at no stage did trial counsel object to any of the foregoing evidence. Nor did he make any application for specific directions in respect of it. He did not even object to the first questions asked of the appellant in cross-examination by the Crown Prosecutor:
It would seem, Mr Gipp, that I think the only reason you put forward as to why [the complainant] has made these stories up about you is that you had to discipline her a few times; is that right? Well, I don't know what reason she's done this.
No, but you suggested, as I understand it, through your counsel and just giving evidence then that it was because you had to discipline her [on] a few occasions ? Yeah, well, that was part of it, I suppose. I don't know, you know. I don't know how people think.
The primary judge correctly charged the jury that it was not for the appellant to give a reason why the complainant should make false complaints against him. This, he pointed out, would quite often be "totally impossible" and he did not have any onus of proof in that regard [69] . This direction was impeccable. However, his Honour's summing up on the approach which the jury were to take in relation to the evidence about the unreported molestation going back many years was much less satisfactory. He said (emphasis added):
There is also overall evidence of ongoing conduct by the accused over many years That evidence of general behaviour is led to show the nature of the relationship between the complainant and the accused, rather than present a picture of isolated events from time to time. There is no need for you to be satisfied beyond reasonable doubt of those background facts because they are given generally, provided that you accept the complainant's account that it occurred. 1. cf Palmer v The Queen (1998) 193 CLR 1 at 11-12, 25, 42-43.
Again, there was no objection by trial counsel. No relevant request for redirection was made. The passage appears in a charge which contains several reminders to the jury about the onus resting on the Crown and the jury's need to be satisfied that the complainant's account in respect of each incident was an honest one which they could safely rely upon. If they did not believe her in respect of any one incident, they were told that it would be dangerous for them to accept her evidence at all and they should acquit on all counts. The passages are illustrated in the reasons of McHugh and Hayne JJ. I will not repeat them.
As I have pointed out, the notice of appeal to the Court of Appeal did not contain a specific ground based upon the foregoing evidence or the misdirection or non-direction now argued. Nor was the point expressly mentioned in that Court. It is not referred to in the reasons of the Court for the order dismissing the appellant's appeal. Because it is, in my view, the only one of the appellant's complaints with substance, it is necessary first to consider certain questions pertaining to jurisdiction.
Appeal is not a facility of the common law. It is a creature of statute [70] . Accordingly, those who appeal must bring themselves within the power granted to the appellate court by statute. It is the filing of the notice of appeal, or equivalent initiating process, which invokes the jurisdiction of a court of appeal [71] . That step is not a mere formality [72] . If a notice of appeal does not specify a ground of appeal, the appeal may be invalid although an appellate court ordinarily has ample power to grant leave for the addition of a ground, or additional grounds, of appeal [73] .
(1) The Court on any such appeal against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal.
(1a) However, the Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
(a) [T]hat the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory. The section contained two other grounds, namely that there had occurred a "wrong decision of any question of law" or a "material irregularity in the course of the trial". However, it is only the first stated ground that appears to have been adopted, in terms, in Australian practice. There is a certain irony in the fact that, in 1995, the phrase "unsafe or unsatisfactory" was removed from English legislation [79] . The previous three grounds for appeal have now been replaced by a single ground - that the conviction is "unsafe". Yet the old English formula lingers on, loyally applied, in Australian courts. 1. Descriptions of verdicts as "unsatisfactory" is not entirely recent. See Jackman v The King (1914) 16 WALR 8 at 10; R v Tamblyn [1967] SASR 140 at 143. 2. Davies and Cody v The King (1937) 57 CLR 170 at 180. 3. Ratten v The Queen (1974) 131 CLR 510 at 515. 4. s 4(1), which amended the Criminal Appeal Act 1907 UK. 5. By the Criminal Appeal Act 1995 UK, s 2(1), which amended the Criminal Appeal Act 1968 UK. See discussion in R v Chalkley [1998] 3 WLR 146 at 163-164; [1998] 2 All ER 155 at 172-173.
If [the appellant] can show a miscarriage of justice, that is sufficient. That is the greatest innovation made by the Act, and to lose sight of that is to miss the point of the legislative advance. 1. R v Cooper (Sean) [1969] 1 QB 267 at 271. 2. R v Cooper (Sean) [1969] 1 QB 267 at 271. 3. R v Cooper (Sean) [1969] 1 QB 267 at 271. 4. (1919) 27 CLR 13 at 23, referring to Criminal Appeal Act 1912 NSW, s 6 (not relevantly different from s 668E of the Code). See also M v The Queen (1994) 181 CLR 487 at 493.
The convenience of a shorthand expression is undeniable. However, it would, in my view, be preferable not to persist with it. There are three reasons for this conclusion. As I shall show they are relevant to what happened in these proceedings.
First, the phrase has no source in Australian legislation. This country has long since abandoned subservience to the law of the United Kingdom. It is not apparent to me why a legislative phrase, operative in that country from 1966 to 1995, should be adopted so uncritically and applied by Australian courts. This is especially so given that earlier Australian legislation, in common form throughout the nation, was differently expressed and for the better part of a century had been interpreted as introducing an "innovation" amounting to a "legislative advance" in the scrutiny of jury convictions in criminal trials. In short, we have our own broad legislative provisions. There is no need to borrow a legislative phrase from another country.
Secondly, there is a danger that the use of the former English statutory formula may mislead. Instead of directing attention to the three-fold criteria expressed in the common form statutory provisions of Australia, application of an "unsafe or unsatisfactory" test might encourage the view that there is but one consideration to be judged. As the Court pointed out in M [88] , the Australian legislation provides for questions of law to be separately dealt with. In a sense, the phrase "unsafe or unsatisfactory" is apt to the first limb of the common form provisions. It may also be relevant to the third limb. However, it is potentially misleading as a criterion for intervention on the ground of a wrong decision on any question of law. A judgment which is affected by a wrong decision of law may indeed be "unsatisfactory". It may also be legally "unsafe". Yet, in this country, that is not the applicable ground for appellate intervention in relation to it.
Thirdly, and most fundamentally, the duty of any court is to conform to its own legislative charter. In England, until recently, this was provided by the "unsafe or unsatisfactory" criterion included in the Criminal Appeal Act 1968 UK. In Australia, the statutory provisions are differently expressed. It is those provisions which must be applied. An advantage of returning to the language of the Australian legislation is that it may replace some of the loose thinking which has accompanied the use of the borrowed shorthand. Above all, it may direct attention to the issue of whether a wrong decision on any question of law has occurred which requires that the judgment, resting on the verdict of the jury, should be set aside. Whether a sharpening of focus on the three limbs of provisions such as s 668E of the Code occurs or not, it is those provisions, and not borrowed language, which govern the outcome of appeals against conviction in this country.
The foregoing conclusion does not mean that every case in which an Australian appellate court has used the phrase "unsafe or unsatisfactory" necessarily demonstrates error requiring correction. Far from it. In most cases, the phrase will have been used in relation to the first limb of the common form provision, namely that the jury's verdict was unreasonable or cannot be supported, having regard to the evidence. That, indeed, appears to have been the way in which the present appellant's case was argued before, and decided by, the Court of Appeal. The ground of appeal relied upon in this case was itself rather unsatisfactory. But it would hardly be fair to the appellant to dispose of the appeal on that footing given that, until now, it has been very common to use this shorthand phrase to cover a multitude of complaints.
In Jones v The Queen [89] , the majority of this Court [90] , reviewing the competing formulations by which members of this Court had expressed "the test for an unsafe or unsatisfactory verdict" [91] , held that "the test formulated by the majority in M must now be accepted as the appropriate test for determining whether a verdict is unsafe or unsatisfactory" [92] . In M , the majority repeated the importance of having regard to the jury's primary responsibility for determining guilt, and the advantages which they enjoy in seeing and hearing the witnesses [93] . The majority, in an apparent reference to the first limb of the common form provision, then went on [94] :
If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. 1. (1997) 191 CLR 439. 2. Gaudron, McHugh and Gummow JJ. 3. Jones (1997) 191 CLR 439 at 450-451. 4. Jones (1997) 191 CLR 439 at 450-451. 5. M (1994) 181 CLR 487 at 493. 6. M (1994) 181 CLR 487 at 494 (footnote omitted). In that case the Criminal Appeal Act 1912 NSW, s 6(1).
Although it is true that, in the appellant's written submissions to the Court of Appeal, mention was made of the circumstances in which the prosecutor had entered a nolle prosequi on counts 1 and 2, no argument was advanced suggesting any irregularity in that procedure or its consequences for the lawfulness of the trial [95] . There was no objection to the accuracy of the primary judge's directions to the jury concerning the evidence of general behaviour. Nor was there any complaint about the failure of the judge to assist the jury on the use which they might make of "those background facts". In the absence of a specific ground of appeal addressed to these matters, the Crown submitted that this Court should not permit them to be raised under the generalised ground complaining that the jury's verdict was "unsafe or unsatisfactory".
The requirement of an independent examination of the evidence was not intended by this Court to impose upon courts of criminal appeal duties to reconsider every ruling on a point of law or procedure made by a trial judge and every sentence of that judge's charge to the jury against the possibility that a "wrong decision of any question of law" might be discovered lurking somewhere which the legal representatives have not identified. In this case, the evidence was extremely sparse. But in many criminal trials, a court of criminal appeal will be faced with multiple appeal books. The transcript will cover thousands of pages. There may be a hundred rulings on evidence and on legal questions. Even if legally permissible, it would be completely unrealistic to expect of, or impose upon, appellate courts duties of detailed independent analysis of judicial rulings and directions on the chance footing that they might find an error which had eluded everyone else. The workload of courts of criminal appeal is extremely onerous. Current arrangements are essential to keep the backlog and delays in such courts within tolerable proportions. In these circumstances, the imposition of such an additional duty would be unreasonable and unrealistic. The judges in such appeals are entitled to rely on the legal profession to raise expressly legal objections as to misdirections and non-directions or as to procedures followed. Such courts hold in reserve relief for the exceptional case where professional incompetence or negligence is clearly demonstrated. It was not suggested that the omissions in this case rose to that level.
The failure of earlier counsel to raise the two points agitated in this Court was at one stage said by the Crown to have been the result of tactical decisions taken at the trial. Clearly this will sometimes be the case. It would then be rare that the issue would be reopened on appeal. But here, although some tactical advantages may have accrued to the appellant from the decision to permit the trial to continue following withdrawal of the first two counts, it is difficult to see any tactical advantage in allowing evidence to be adduced of the "background facts" of his alleged molestation of his step-daughter. Still less is it easy to see any tactical advantage to him in allowing to pass, unchallenged, the judge's direction to the jury as to the way in which they should use such evidence. The realistic explanation for the failure to raise these points earlier, whether at trial or in the Court of Appeal, appears to be that they were not perceived by those who then represented the appellant. It was for that reason, and no other, that they were not litigated.
The Crown submitted that this Court should not now permit such points to be raised. To do so, it urged, would involve upholding an appeal from the Court of Appeal although no real error had been shown in its disposal of the appeal to it within the ambit of the single ground of appeal argued. To permit such a course might discourage accuracy in the performance by legal representatives of their professional responsibilities. It would sanction departure from the requirements of precision in the specification of grounds of appeal and in the argument of appeals, compliance with which is essential to the efficient discharge of the responsibilities of appellate courts. Most importantly, it would overlook the nature of the process provided by statute. This is an appeal, disposing of identified grounds of appeal, not a roving judiciary enquiry to discover and correct error in the trial, undiscovered or uncomplained about by those representing the appellant. The Crown expressed concern about the implications of the course adopted by the appellant. It urged that, if rewarded with success, it would have large potential consequences for the finite judicial and forensic resources available to the community for disposing of proceedings of this kind. There is obviously force in the Crown's submissions.
It would be tempting to dispose of the appellant's new complaints before this Court on the technical footing that they were not argued before the Court of Appeal, are different from the matters determined there and lie outside the ground of appeal filed, referring solely to the complaint that the verdicts were "unsafe or unsatisfactory". But such a result would, in my view, condone a serious miscarriage of justice which has now been brought to light. The appellant personally was clearly not responsible for the failure earlier to raise the objections to the trial which have now been expressed. The mistake or oversight was that of the legal representatives who earlier appeared for him. I cannot bring myself to conclude that there was a mistake on the part of the Court of Appeal. That Court cannot, in my view, be criticised for having failed to detect the points of objection now relied on in this Court. Nor could I accept that the Court of Appeal had an independent duty to scrutinise each and every ruling of the primary judge or the entirety of his charge to the jury in case it found an error in the proceedings or in the directions to the jury which required appellate intervention. Nor, in my view, would a general scrutiny of the evidence reasonably turn up the procedural point or the complaints about the misdirection and non-direction now argued.
Nevertheless, pursuant to special leave, this Court now has the appeal before it. One of the grounds upon which the Parliament has provided for the grant of special leave is that the interests of the administration of justice in the particular case require consideration of the judgment to which the application relates [99] . The appeal certainly raises one point of general importance for the administration of justice in criminal appeals. This concerns the care which must be exercised in the use of the undifferentiated criterion of "unsafe or unsatisfactory" to describe the circumstances in which a court of criminal appeal will disturb a jury's verdict. Such use might, in this case, have masked the matters of substance on which the appellant now relies. But beyond that general consideration there are features of this particular case which produce a firm conclusion in my mind that a miscarriage of justice has occurred.
The Court is not obliged to ignore a manifest miscarriage of justice demonstrated to it simply because the grounds to demonstrate it were not earlier raised. Ultimately, what is under review in this Court is not the reasons of the Court of Appeal, but its order and judgment. Defensive of the liberty and other rights of those convicted of criminal offences, courts of criminal appeal in Australia have always been ready, more so than in civil matters, to take a lenient view of procedural failures where that course is deemed appropriate and just. In exceptional cases, where serious error is brought to light, such courts regularly allow a ground to be raised belatedly which concerns a "manifest miscarriage of justice". This has certainly been the approach in criminal appeals in Queensland [100] . In my view it is the correct approach. Any other rule would give priority to form over substance. It would permit procedural rules to defeat correction of a serious miscarriage of justice that has come to the notice of a court of justice.
Rigidities of pleading or procedure do not prevent evaluation of substantial arguments that a manifest miscarriage of justice has occurred, particularly, but not only, where such miscarriage has resulted in a custodial sentence. This Court has adequate means to defend itself from insubstantial attempts to raise for the first time points of objection earlier neglected or overlooked [101] . It can readily rebuff such endeavours where no injustice is demonstrated or where the course taken below is shown to have followed a deliberate tactical decision. But where an argument is raised which appears to involve a manifest miscarriage of justice, it should not be ignored because the argument ought properly to have been expressed earlier. The Code and its equivalents in other jurisdictions require that, in criminal appeals, all courts should be vigilant to miscarriages of justice brought to their notice. When a manifest miscarriage can be shown, Australian courts, unless forbidden by statute, do not turn a blind eye.
[W]here evidence of criminal conduct, other than that which is charged, is being introduced into the evidence on the trial, the jury ought to be clearly told that evidence of such conduct can be used by them only if they are satisfied that it occurred and only for the limited purpose of determining whether a sexual relationship existed between the complainant and the accused, thereby enabling the evidence relied upon by the Crown in proof of the offences charged to be assessed and evaluated within a realistic contextual setting. They should be told not to reason that the accused is the kind of person likely to commit the offence charged
The jury should also be clearly instructed that evidence of other sexual activity does not itself prove the offences charged. It is of the utmost importance that the jury be told that the accused can be convicted on any count alleged against him only if they are satisfied beyond reasonable doubt that the facts alleged in that count occurred. It is impermissible to convict the accused on the basis that, although the conduct so identified has not been proved to the requisite standard, some other conduct alleged by the victim has occurred.
I feel that we're very close to a verdict on some of the counts, your Honour. But we'd appreciate a little bit more guidance on what, in fact, we're required to base our decisions on, whether it should be facts that were provided or more or less the evidence through the sworn testimony that the people have given in evidence here. Although this request is not entirely clear, it is certainly consistent with confusion on the part of this jury about the evidence upon which they were required, and entitled, to act. In his redirection, the primary judge did not address specifically the tendency evidence. He did not refer to the great care that was to be exercised in the use made of such evidence and in reasoning from it. Accordingly, to the end of the trial, that matter was left in the state in which the direction had been given, namely that the jury did not need to be satisfied beyond reasonable doubt of the truth of such background facts. The ultimate questions are whether this clear misdirection, and the related non-directions give rise to a miscarriage of justice. If so, were they within the grounds of appeal argued in the Court of Appeal and now, without amendment, before this Court? 1. R v Gipp, Trial transcript, District Court of Queensland; 30 May 1996, at 83. 2. R v Gipp, Trial transcript, District Court of Queensland; 30 May 1996, at 83.
It is true that the complaint concerning the alleged miscarriage of justice resulting from the directions given by the primary judge was not expressly raised in the notice of appeal to the Court of Appeal or indeed to this Court, as it should have been. However, in the way the "unsafe or unsatisfactory" shorthand has sometimes been permitted to extend not only to the first limb of the common form statutory provision but also to the third, I would not exclude the appellant from now raising his complaint. The procedures have been most imperfect. But they do not ultimately disguise a serious risk of miscarriage of justice demonstrated to this Court which it cannot allow to stand.
The appellant asked that, if his appeal were allowed, the convictions should be quashed and verdicts of acquittal entered. That is ordinarily appropriate where the verdict entered at the trial is unreasonable or cannot be supported having regard to the evidence. But where, as here, the real objection which ultimately succeeds concerns errors of judicial misdirection and non-direction resulting in a miscarriage of justice, the proper course is to quash the convictions and to order a new trial [123] . It will then be for the prosecuting authorities to decide whether, in the circumstances, a retrial should be had. Any retrial of the appellant should obviously be confined to the counts which went to the first jury. The Crown ought not have a second opportunity to breathe life into, or to amend, counts 1 and 2 which it "withdrew".
It was for these reasons that I joined in the orders pronounced by the Court on 1 April 1998 as set out in the reasons of Gaudron J.
On 29 May 1996 the appellant, Gregory Bernard Gipp, was arraigned before a jury in the District Court of Queensland at Southport. The indictment contained four counts of unlawful and indecent assault and three counts of rape. The complainant was his step-daughter. The appellant denied the allegations.
The offences were alleged to have occurred between seven and fourteen years before the hearing, that is, between December 1982 and January 1989. During this period the complainant was aged between ten and sixteen years. The events were not reported to the police until 1995. The complainant was twenty-three at the time of the trial.
The complainant's evidence was uncorroborated in respect of all counts. Except for two of the counts on the indictment the occasions on which the alleged offences took place were identified only by reference to a period, rather than a specific date.
During the course of her evidence-in-chief the complainant was confused in her accounts of the first and second counts on the indictment. This led to the "withdrawal" of those counts from the jury. Count 1 was one of the only two counts on the indictment identified by reference to a specific date. The remaining count which identified the time of the incident by reference to a specific date was count 5.
The offence the subject of count 5 was alleged to have occurred on 11 May 1986, Mother's Day. The complainant's mother was called by the Crown. She verified the appellant's account which, if accepted, would have established that at the time of the alleged offence, the complainant was either on the way to, or at a public hospital with the appellant, rather than at home with him and an infant child.
Hospital records tendered in evidence and noting the time of the complainant's admission to hospital for an emergency appendectomy were corroborative of the appellant and his wife.
In the complainant's examination-in-chief, before eliciting an account of the actual offences, the Crown introduced evidence of a history of sexual abuse of the complainant by the appellant. No objection was taken to this evidence. Further evidence of abuse was introduced in cross-examination of the complainant. The appellant now complains that he had no opportunity to refute this evidence, other than by a bare denial of it.
The evidence on trial was all heard in two and three quarter hours on 29 May 1996. The trial was conducted as a contest of credit between the complainant and the appellant. In the course of his summing up, the trial judge referred to the evidence of a history of sexual abuse in the following terms:
There is also overall evidence of ongoing conduct by the accused over many years. That evidence of general behaviour is led to show the nature of the relationship between the complainant and the accused, rather than present a picture of isolated events from time to time. There is no need for you to be satisfied beyond reasonable doubt of those background facts because they are given generally, provided that you accept the complainant's account that it occurred.
That the jury was almost certainly left in a state of confusion about this direction appears from a question which they asked after they had been deliberating for some time. The foreman sought the assistance of the trial judge by making this request:
I feel that we're very close to a verdict on some of the counts, your Honour. But we'd appreciate a little bit more guidance on what, in fact, we're required to base our decisions on, whether it should be facts that were provided or more or less the evidence through the sworn testimony that the people have given in evidence here.
On the morning of 30 May 1996 the jury returned a verdict of guilty on each of the five counts which were left for their consideration.
The appellant was sentenced to ten years imprisonment on each count of rape and five years imprisonment on each count of indecent assault. All sentences were to be served concurrently.
On 27 August 1996, the Queensland Court of Appeal heard and dismissed the appellant's appeal against conviction without calling on the respondent.
There was only one ground of appeal stated in the notice of appeal:
That the verdict was unsafe and unsatisfactory and against the weight of the evidence in particular the complainant's evidence which was uncorroborated.
The focus of the appellant's submissions on appeal was on the evidence relating to count 5, the charge of indecent assault which allegedly occurred before the visit to the hospital. The Court of Appeal dealt with the hospital records in this way:
the hospital records [as to time of admission] were not necessarily inconsistent with [the complainant's] evidence. Alternatively, the jury could have concluded that the complainant was mistaken as to the times on that day but nevertheless have accepted her evidence as to the indecent assault on that day and to have rejected the evidence of the appellant and his wife.
The Court of Appeal expressed its conclusion by saying:
In the end the jury were left with a conflict of evidence between the complainant on the one hand and the appellant and his wife on the other. In resolving that, the jury had the advantage, which this Court lacks, of observing each of them give evidence and from that observation forming a view as to their credibility. There is no basis for concluding that the jury should have had a reasonable doubt on that question.
The approach of the Court of Appeal and its conclusions were consistent with the way in which the case there was argued on behalf of the appellant.
It is for the first time that the points argued before us here have been raised in a Court.
At the outset, counsel for the appellant in this Court (who was not counsel at the trial or in the Court of Appeal) mindful of no doubt what was said by Gleeson CJ in R v Birks [124] , was anxious to dispel any impression that points taken before us were deliberately not taken at the trial for tactical reasons. I would be prepared to accept that this is so. The appellant's counsel took no exception to the "withdrawal" of the two counts, or the way in which that occurred. The speeches of counsel to the jury have been transcribed and defence counsel on trial made only the most passing of references to the "withdrawal" of the two counts:
They [the Crown] have not further proceeded in respect of counts 1 and 2 and, as you will have remembered, there was a lot of evidence about who slept where and all the rest of it. That's really not relevant in respect of the counts upon which you have to now deliberate. 1. (1990) 19 NSWLR 677 at 686: "The failure to deal with the matter [a failure to cross-examine on important issues] was not the result of a deliberate, even if perhaps unwise, tactical decision to make as little fuss as possible about subjects on which it was thought that the less that was said the better. This was not a matter of taking a calculated risk. The barrister simply did not know what to do, and so, until it was too late, he did nothing. It should not be thought, however, that the failures of the appellant's counsel to which attention has been drawn constituted the only respect in which the proceedings were affected by error. There was, unfortunately, a combination of circumstances which together resulted in what I regard as a miscarriage of justice. They all related in one way or another to the original inadequacy of the cross-examination of the complainant, and the consequences that flowed from that."
The ground of appeal upon which the appellant was granted special leave is expressed in the following terms:
The Court of Appeal failed to apply, or incorrectly applied, the principles which govern an appellate court's assessment and determination of whether a verdict is unsafe and unsatisfactory.
The criminal appeal provisions in this country do not contain the words "unsafe and unsatisfactory". Resort to the expression, an "unsafe and unsatisfactory" verdict, as a ground of appeal should therefore generally be discouraged, but the requirement that courts of appeal consider the substance of such a ground when it is properly raised, by an independent assessment of the case remains. Appeals should preferably be framed by reference to the terms of the appeal provisions.
The appeal provision in Queensland, s 668E of the Criminal Code Act 1899 Q (the Criminal Code), is analogous to appeal provisions in other Australian States [125] :
(1) The Court on any such appeal against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal.
(1A) However, the Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
(2) Subject to the special provisions of this Chapter, the Court shall, if it allows an appeal against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered.
Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as "unjust or unsafe" [127] , or "dangerous or unsafe" [128] . In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict [129] . Questions of law are separately dealt with by s 6(1) [of the Criminal Appeal Act 1912 NSW]. The question is one of fact which the court must decide by making its own independent assessment of the evidence [130] and determining whether, notwithstanding that there is evidence upon which a jury might convict, "none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand" [131] . But a verdict may be unsafe or unsatisfactory for reasons which lie outside the formula requiring that it not be "unreasonable" or incapable of being "supported having regard to the evidence". A verdict which is unsafe or unsatisfactory for any other reason must also constitute a miscarriage of justice requiring the verdict to be set aside. In speaking of the Criminal Appeal Act in Hargan v The King [132] , Isaacs J said: "If [the appellant] can show a miscarriage of justice, that is sufficient. That is the greatest innovation made by the Act, and to lose sight of that is to miss the point of the legislative advance." And as the Court observed in Davies and Cody v The King [133] , the duty imposed on a court of appeal to quash a conviction when it thinks that on any ground there was a miscarriage of justice covers: "not only cases where there is affirmative reason to suppose that the appellant is innocent, but also cases of quite another description. For it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled."
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty [134] . But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. [135]
[y]ou must be entirely satisfied of the honesty and reliability of the complainant before you act on that evidence alone.
It is true, as I pointed out in Pfennig v The Queen [138] , that there are cases where the interests of justice require that evidence should be admitted even though it reveals that the accused has a criminal or reprehensible propensity. It is also true that in some cases evidence may be admitted even though the sole basis for its admission is that it reveals a criminal or reprehensible propensity on the part of the accused which the Crown will rely on to prove the guilt of the accused [139] . Before evidence revealing such a propensity is admitted, however, the judge, according to numerous decisions of this Court [140] , must be satisfied that the probative value of the evidence outweighs its prejudicial value.
If evidence revealing a criminal or reprehensible propensity is admitted, the trial judge must give the jury careful directions concerning the use which they can make of the evidence. If the evidence is admitted for a reason other than reliance on propensity, the judge must direct the jury that they can use the evidence for the relevant purpose and for no other purpose. In some cases, the judge may need to be more specific. He or she may need to direct the jurors that they cannot use the evidence for an identified purpose. If the evidence is admitted because the Crown wishes to rely on the accused's propensity as an element in the chain of proof, it is especially necessary that the judge give the jurors clear directions as to the manner in which they may use the propensity evidence.
In the present case, the trial judge was not asked to rule on the admissibility of W's evidence even though it disclosed criminal or reprehensible conduct on the part of the appellant. This was because it was conceded that it was relevant to rebut evidence that the appellant was a person of good character [141] . Some of it was also admissible, as I have said, because it corroborated the evidence of the complainant. Nevertheless, because the evidence of W did disclose criminal or reprehensible conduct on the part of the appellant, absent some countervailing circumstance of sufficient cogency, the trial judge was bound to direct the jurors as to how they could use the evidence of W.
It is important to take into account the statutory authorisation for briefer directions to juries of which Judge Court availed himself in this case. It is also necessary to remind oneself that a judge's direction to a jury must be considered in the context of the entire trial and in the light of the issues litigated and the submissions made [143] . This Court should exercise restraint before adding to the catalogue of warnings required of judges conducting criminal trials. If overlooked, or considered unnecessary in a particular trial, they may simply give rise to unmeritorious appeals. But, in certain fundamental matters, the judge carries an unavoidable obligation to provide directions which are necessary to prevent a perceptible risk of a miscarriage of justice [144] . The risk must be a real, and not a fanciful one to attract the intervention of an appellate court [145] . It is not enough that a conclusion is reached that a particular warning would have been desirable. It must be shown to have been necessary in order to avoid the risk of a miscarriage of justice. If directions on the jury's legal duties are incorrect or seriously inadequate a new trial will ordinarily be ordered unless the appellate court can affirmatively conclude that the error or omission was in favour of the appellant and that no jury could have failed to convict had they been properly instructed [146] . This was the conclusion which the Court of Criminal Appeal reached. With respect, I disagree. 1. BRS (1997) 191 CLR 275 at 330-331. 2. R v Tripodina & Morabito (1988) 35 A Crim R 183 at 191-192, per Yeldham J; R v Lawrence (1996) 86 A Crim R 412 at 424-425, per Callaway JA. 3. Pemble v The Queen (1971) 124 CLR 107 at 116-118, per Barwick CJ. 4. R v Johnson (unreported; Court of Appeal (Vict); 27 February 1997) at 17, per Callaway JA. 5. Pfennig v The Queen (1995) 182 CLR 461 at 542, per McHugh J; R v Zorad (1990) 19 NSWLR 91 at 108-109, per Hunt, Enderby and Sharpe JJ; cf Odgers Case and Comment - Martin, Criminal Law Journal, vol 15 (1991) 57, at p 59 .
Objection was taken at trial to evidence concerning other acts of an indecent nature, but not to the generalised evidence of intercourse between the applicant and complainant. Therefore it is not possible to identify with certainty the basis on which the latter evidence was admitted. While evidence of similar facts ordinarily involves conduct relating to persons other than the complainant, it is not necessarily so confined. In R v Ball [157] where a brother and sister were each charged with counts of incest, evidence was admitted to show that they had previously lived together as husband and wife and that the female defendant had given birth to a child which she registered, describing herself as the mother and the male defendant as the father. Lord Loreburn LC, with whom the other members of the House of Lords agreed, applied Makin v Attorney-General (NSW) [158] in upholding the admissibility of the evidence of the earlier relationship. However, evidence which bears on the relationship between an accused and a complainant over a period of time may not in truth be similar fact evidence where it is admitted, not to show propensity but rather the relationship between the parties: see the discussion by McHugh J in Harriman v The Queen [159] .
In the present case, the real difficulty with treating the generalised evidence as evidence of similar facts or relationship is the problem of identifying the alleged offence on which the similar conduct or relationship is said to bear.
It was not being led to establish the identity of the offender, as was the case in Pfennig [161] , or to negative some defence of accident or mistake. It was being led for the purpose of proving an improper sexual relationship or guilty passion which existed between the accused and the victim, tending to make it more likely that the offence charged in the indictment was in fact committed (see R v Ball; [162] R v Beserick [163] ; S v The Queen [164] ; Harriman v The Queen [165] ); or, as Deane J put it in B v The Queen [166] , such evidence can be used by the jury as "the key to an assessment of the relationship between the applicant and [the victim] and, as such, constitute[s] part of the essential background against which both the [victim's] and the applicant's evidence of the alleged offences necessarily [falls] to be evaluated" (see also R v Etherington [167] ). 1. Unreported; 15 November 1995, at 7, per Winneke P, Callaway JA and Southwell A-JA. 2. (1995) 182 CLR 461. 3. [1911] AC 47. 4. (1993) 30 NSWLR 510. 5. (1989) 168 CLR 266. 6. (1989) 167 CLR 590. 7. (1992) 175 CLR 599 at 610. 8. (1982) 32 SASR 230.
I would, with respect, therefore reject the notion that there is a special category of background evidence that may be adduced by the prosecution in a criminal case (absent, that is, any forensic conduct by the defence that may make it admissible). If such evidence is to be received it must owe its admissibility to some, quite specific, other purpose, including for example, in an appropriate case, proof of a guilty passion, intention, or propensity, or opportunity, or motive. There may also be cases in which a relationship between people may be directly relevant to an issue in a trial and in those circumstances admissible as such.
Here I think that the evidence is admissible as propensity evidence. The way in which the appellant approached the complainant, what he told her and how he abused her over the years were all acts sufficiently similar to warrant the introduction of evidence of them. The evidence, if tendered at a subsequent trial of the appellant, should be the subject of careful directions of the type discussed by McHugh J in BRS [169] as to the use to which it may be put by the jury. It would also be subject to appropriate comment as to its non-specificity if it is sought to be tendered in the vague form that it assumed at the trial. So too, the trial judge will still have a discretion to exclude it, if, in all of the circumstances, including the conduct of the trial, its prejudicial effect outweighs its probative value.
In this case I would conclude that the verdict is unsafe and unsatisfactory in the sense in which that expression is used and explained in M's case. In doing so, I add that there is a duty cast upon prosecutors, as well as defence counsel, on trial, to be vigilant to assist the trial judge in the whole conduct of the trial, that is, in tendering evidence, making clear the basis upon which it should be received, used, and is the subject of directions by the trial judge.
The other defect in the proceedings at the trial, the "withdrawal of the two counts" is relevant to the ground that the verdict was unsafe and unsatisfactory. The prosecutor made his decision, "in view of the variation in the evidence", meaning the departure in the complainant's evidence as to specific dates from the dates alleged in the counts. This matter, the question asked by the jury, the failure of the answer to it to address adequately the absence of explanation of the relevance and significance of the evidence of prolonged abuse, and the defect in the summing up are all factors which combine to make the verdict here unsafe and unsatisfactory. It is impossible to say that the appellant did not lose a chance which was fairly open to him of being acquitted. Had the attention of the Court of Appeal been drawn to these matters or had their Honours themselves noticed them, the Court may well, and should have set aside the verdict and ordered a retrial. Furthermore, had the Court of Appeal undertaken the independent assessment of the evidence in the context of the trial as a whole as required of Courts of Appeal it would, I think, inevitably have reached this conclusion. The Court of Appeal was in error in failing to make that assessment in that context in this case.
I turn to the other point argued in this Court, that the Crown should have either entered a nolle prosequi as required by s 563 of the Criminal Code, as it then stood, and had the appellant formally discharged from the indictment, or should have acceded to a directed acquittal on those counts. I think that the argument is right. Indeed it is effectively conceded to be so by counsel for the respondent who says, correctly, that the appellant's counsel at trial took no exception to the course adopted, and that the course corresponded with long standing Queensland practice.
At the time of trial, s 563 of the Criminal Code (now amended to accommodate the practice) provided as follows:
(1) A Crown Law Officer may inform any court, by writing under the officer's hand, that the Crown will not further proceed upon any indictment then pending in the court.
(2) An officer appointed by the Governor in Council to present indictments in any court of criminal jurisdiction may inform that court, by signed writing, that the Crown will not further proceed upon any indictment then pending in that court.
(3) When such information is given to the court the accused person is to be discharged from any further proceedings upon that indictment.
Where an accused person has entered a plea of not guilty, he or she is deemed to have demanded, by virtue of s 604 of the Criminal Code [170] , that the issues raised by the plea be tried accordingly. That did not happen. The trial record is, on that account, defective. It is unnecessary to decide whether in the circumstances of this case, this defect should lead to an invalidation of the whole trial in view of the conclusion that I have already stated with respect to the other ground.
Gipp
The Queen
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