Criminal Law - Evidence - Judicial discretion to admit or exclude evidence - Prejudicial evidence - Particular cases - Hypnotically induced testimony - Matters relevant to the exercise of the discretion. R v McFelin (1985) 2 NZLR 650, considered.

Criminal Law - Jurisdiction, practice and procedure - Information, indictment or presentment - Joint or separate trial - Effect of embarrassment or prejudice - Relevance of countervailing considerations. R v Demirok [1976] VicRp 19; (1976) VR 244; R v Collie [1991] SASC 2996; (1991) 56 SASR 302; Webb v R [1994] HCA 30; (1994) 122 ALR 41, followed.

Criminal Law - Jurisdiction, practice and procedure - Matters connected with the conduct of the defence - Right of accused to cross- examine Crown witnesses on all relevant matters.

Criminal Law - Appeal and new trial - Unreasonable or insupportable verdict - Tests to be applied - Whether verdict unsafe and unsatisfactory - Verdict reasonably open on the evidence - No reason for concluding that the jury ought to have entertained a reasonable doubt. M v R [1994] HCA 63; (1994) 69 ALJR 83, followed.

Criminal Law - General principles - Degrees of criminality - Parties to criminal offences - Principals and persons deemed to principals - Abetting - What amounts to. Hutt v R A21/1989, followed.R v Beck (1990) 1 Qd R 30, R v Coney (1882) 8 QBD 543, considered.

Criminal Law - Evidence - Evidentiary matters relating to witnesses and accused persons, their character and credibility - Evidence that accused had been to prison and had there committed sodomy - Evidence not relevant to any issue. Evidence Act 1910, s85(10).

Counsel for appellant Roughley: H J Kable QC and M A Ashwood

Solicitors for appellant Roughley: Crisp Hudson and Mann

Solicitors for appellant Marshall: Aboriginal Legal Service

Counsel for appellant Haywood: H J Kable QC and C J Gibson

1 That the appeal be allowed.

2 That the conviction and sentence on count 10 of the

indictment be quashed.

3 That there be a new trial on count 10 of the indictment.

Appeal CCA43/1994

1 That the appeal be allowed.

2 That the convictions and sentence on counts 6 and 10 of

the indictment be quashed.

3 That there be a new trial on count 6 of the indictment.

4 That a verdict of acquittal be entered on count 10 of the

indictment.

Appeal CCA46/1994

1 That the appeal be allowed.

2 That the convictions and sentence on counts 4, 6, 10 and

19 of the indictment be quashed.

3 That there be a new trial on counts 4, 6, 10 and 19 of

the indictment.

COX J I have had the advantage of reading the reasons for judgment prepared by Zeeman J. I agree with those which have led him to conclude that the post-hypnotic evidence of the complainant received at the trial was admissible and that although the learned trial judge had a general discretion to exclude it, or some parts of it, the circumstances did not call for such a discretion to be exercised. I also agree with his reasons and conclusions in respect of the arguments that separate trials should have been ordered and that the learned trial judge erred in refusing to permit cross-examination of the complainant tending to establish that Marshall had had sexual intercourse with her prior to the rape of her by Haywood comprised in count 10 of the indictment. Likewise I agree with his reasons and conclusions in respect of the evidence of the complainant and the cross-examination of Haywood relating to the assertion that both he and Marshall had been imprisoned and had committed sodomy. There is nothing I wish to add in respect of these matters. I also accept his statement of the facts. I intend to confine my observations to those grounds conveniently summarised by Zeeman J on p3 of his reasons for judgment as:

"4 That there was no evidence upon which the jury

properly instructed could have convicted Roughley or

Marshall on count 10 or, alternatively, that their

convictions on that count are unsafe and unsatisfactory

by reason of the paucity of evidence (Roughley grounds

1 and 4, Marshall grounds 1 and 4).

5 That the learned trial judge gave inadequate

directions as to aiding and abetting in relation to

count 10 (Roughley grounds 2, 2A and 3, Marshall ground

1A)."

2. In respect of count 10, it was the Crown case that Haywood had raped the complainant in the paddock and that while this activity was occurring both Marshall and Roughley were present and by their non-accidental presence encouraged Haywood to commit that crime and thereby abetted him to do so. It was common ground on the hearing of the appeals that there was no evidence which would have justified the jury in concluding that either of them did anything which could have amounted in law to aiding Haywood to commit the crime although the indictment alleged in count 10 that each "aided and/or abetted" Haywood to do so.

3. The relevant legal principles have been stated in a number of cases (R v Coney and Ors (1882) 8 QBD 534; R v Allen and Ors (1963) 47 Cr App R 243; R v Clarkson and Ors (1971) 55 Cr App R 445; R v Jones and Mirrless (1977) 65 Cr App R 250; R v Smith CCA 2/1979; Hutt v R CCA 21/1989). In addition to establishing on evidence admissible against the accused charged as an abettor that the crime charged or its alternative was committed by the principal offender and that the conduct of the accessory in fact encouraged the commission of that crime, the Crown must prove that the accomplice intended that crime to be committed by the principal offender and furthermore must prove wilful encouragement or, in other words, must prove that the accomplice intended his conduct to have the effect of encouraging the principal offender. Mere presence, even if it has the effect of encouraging the principal offender to commit the crime and is accompanied on the part of the accomplice by an intention to render assistance if required, is not sufficient (R v Jones and Mirrless (supra) at 252).

4. In respect of Marshall, the evidence did not justify a conclusion that he was present at the moment Haywood effected penetration, although he may have been. Were the definition of rape still the same as it was when considered by this Court in Richardson v R (1978) Tas SR 178, no conviction of him for abetting Haywood to commit rape could be sustained. But the law has been changed and the continuation of non-consensual sexual intercourse after penetration is now rape. Consequently one who abets a principal offender by wilfully encouraging him to continue an act of sexual intercourse already commenced will be rightly convicted. The learned trial judge, however, did not give a direction addressing this hypothesis, confining his direction to a situation which assumed presence by Marshall at the moment of penetration when, as I have said, the evidence did not support a finding to that effect. In respect of count 10, the conviction of Marshall on that basis cannot therefore stand and must be set aside. Marshall's case, nevertheless, requires resolution of these further questions:

1 Was there evidence that would have enabled a jury acting

reasonably to find on evidence admissible against Marshall:

(a) that Haywood committed the crime of rape?

(b) that Marshall's presence encouraged Haywood to continue

to have non-consensual sexual intercourse with the

complainant?

(c) that Marshall intended Haywood to continue having such

intercourse? and

(d) that Marshall furthermore intended his presence to

encourage Haywood to continue having such intercourse?

And

2 If yes to each such question, does the omission by the

learned trial judge to give the jury directions relevant to

such findings, in the circumstances, preclude this Court

from ordering a retrial of the appellant Marshall on this

count?

5. There can be no argument that there was not ample evidence that Haywood raped the complainant and that Marshall knew she was not consenting. The remaining three ingredients were matters in respect of which I am satisfied the jury had sufficient evidence to infer their existence. The complainant gave evidence that Marshall was present when Haywood was on top of her, standing nearby with Roughley, watching. Asked "When you say he was on top of you what do you actually mean by that?" she replied "He had his penis in my vagina". Given the background evidence of assaults and threats in the car, pleas by the complainant deposed to by the witness Shea, when he was still in the car, not to let them rape her, the fact that Marshall went into the paddock some distance from the car and was in the company of the complainant and the other two appellants, the jury was, in my view, entitled to reach a state of satisfaction beyond reasonable doubt that Marshall's conduct in standing nearby watching while Haywood continued to have sexual intercourse with the obviously non-consenting complainant had the effect of encouraging Haywood to do so and giving him additional confidence that she would offer little, if any, resistance, that Marshall intended his presence to give him that encouragement and that he intended Haywood to continue his act, both of them knowing that she was not consenting.

6. The fact that the jury acquitted all three on subsequent counts involving vaginal rape as a principal by Roughley (count 11) and by Haywood again (count 13) and a number of other acts of sexual assault does not constitute any basis for describing the jury's verdict on count 10 as unsafe and unsatisfactory. I agree with the comments of Underwood J, whose reasons for judgment I have also had the advantage of perusing, that their verdicts can readily be explained on a basis other than that they rejected the complainant's version of events and found count 10 proved by a misinterpretation of DNA evidence. Although his Honour's comments are related to Roughley's appeal, they are equally applicable to that of Marshall. We were pressed with the proposition that the acquittals were, in the reaching of the verdict on count 10, entitled to be accorded some special weight by the jury, reliance being placed on the decision of the High Court in Garrett v R [1977] HCA 67; (1978) 139 CLR 437. In that case evidence of an acquittal of the applicant at an earlier trial was treated by the judge presiding at the second trial in relation to a subsequent alleged rape of the same prosecutrix as a "neutral fact" and he so directed the jury. At 445 Barwick CJ said:

"But it was not neutral and, if the prosecutrix were

rightly permitted to give the evidence she gave, the

acquittal was a dominant fact of which the applicant

was entitled to full credit. To have said that the

acquittal was neutral was to deny the applicant the

full benefit of the acquittal and not to lay that

emphasis upon it for which the circumstances called."

"The relevant principle is that the acquittal may not

be questioned or called in question by any evidence

which, if accepted, would overturn or tend to overturn

the verdict. That the applicant was not guilty of the

former charge because acquitted of it is a matter which

passed into judgment: it is res judicata. It is upon

that principle and not upon any issue estoppel that the

applicant succeeds."

8. At a subsequent trial the Court must accept the veracity of the verdict of acquittal. In R v Storey [1978] HCA 39; (1978) 140 CLR 364 at 372-373 Barwick CJ said:

"... the citizen must not be twice put in jeopardy,

that is to say, as relevant to the present discussion,

must not be placed at the risk of being thought guilty

of an offence of which he has been acquitted, or of in

any sense being treated as guilty. It is the use of

the evidence given on the prior occasion to canvass the

acquittal which, if allowed, would offend the rule

against double jeopardy, giving that rule a generous

application. The principle that the accused in the

subsequent trial must be given the full benefit of the

acquittal thus might be regarded as akin to but not a

mere extrapolation of the principle of autrefois

acquit, both being grounded upon the protection of the

law against double jeopardy. But, to my mind, they are

distinct principles. In my opinion, the remarks of

Lord MacDermott in Sambasivam v Public Prosecutor

Federation of Malaya (1950) AC 458, sufficiently

established the basic principle though, as I have

indicated, I would take the reference to res judicata

to be confined to the fact of acquittal and not to

extend to any fact supposedly found or denied in

arriving at that verdict."

9. These principles are established by the Privy Council decision of Sambasivam v Public Prosecutor Federation of Malaya (supra), Kemp v R [1951] HCA 39; (1951) 83 CLR 341 and J v R (No 2) CCA 33/1989. They in no way relate to the reaching of the jury's verdict on one count of an indictment containing several counts where the same jury enters a verdict of acquittal on other counts. Only where the verdict of guilty is inconsistent on its face with verdicts of not guilty may the full benefit and effect of the latter call for a similar verdict of acquittal (cf the circumstances argued to obtain in R v Wilkes [1948] HCA 22; (1948) 77 CLR 511). Even then it does not always follow that the inconsistency will lead to an unsafe and unsatisfactory result (R v Drury (1972) 56 Cr App R 104; R v Segal (1976) Crim LR 324; R v McCluskey (1994) 98 Cr App R 216; R v Harrison (1994) Crim LR 859).

10. In the case of R v Cilgram (1994) Crim LR 861 the Court of Appeal, in a case where the jury had acquitted the appellant of certain counts of sexual abuse but convicted him of others occurring when the complainant was younger, rejected the broad submission that a guilty verdict must be regarded as unsafe whenever credibility was in issue and the jury indicated by another verdict that they had doubts about a material part of the evidence given:

"Nevertheless, in the particular circumstances of the

case, which was both a case of an uncorroborated sexual

complaint and one in which the jury's doubts about the

complainant's evidence had been established in

particular by their failure to convict on the count of

buggery, which did not require consent, and all they

had to be sure of was the occurrence of the acts

themselves," (which were widely separated in time) "the

convictions were ones which no reasonable jury could

have come to in the light of their verdicts of

acquittal. Once the jury had doubted her evidence on

the later years, they ought to have realised that her

credibility was such that they could not be sure of her

evidence, uncorroborated as it was, in respect of the

earlier counts." (At 862).

11. In the present case it was common ground that Haywood had intercourse with the complainant as alleged in count 10 and there was ample independent corroboration that she did not consent to any of the sexual activities engaged in by the appellants. The occurrence of the activities particularised in the subsequent counts on which verdicts of acquittal were returned was disputed, there was a degree of uncertainty in her evidence as to their sequence and detail and no corroboration. In these circumstances the acquittals did not, in my view, indicate any adverse finding by the jury in respect of her credibility or any basis for considering the convictions unsafe and unsatisfactory.

12. In my opinion there was evidence which, had the appropriate directions been given, would have justified the conviction of the appellant Marshall on count 10. Although the conviction must be quashed by reason of the omission to give such directions, it could not be said that even had they been given, a verdict of guilty would have been unsafe and unsatisfactory. Had that been the case, there would be no justification in ordering a new trial. But as it is not the case, I can see no reason why Marshall should stand trial again only on count 6, his fair chance of acquittal on which was jeopardised by the admission of evidence of bad character, and not on count 10 as well. Neither counsel nor the learned trial judge adverted to the need for a differentiation in directions depending upon whether the evidence supported a finding of abetting the continuation of a rape as opposed to its initiation. The Crown case was that while sexual intercourse was occurring with Haywood, Marshall abetted him in what he was doing, that is, continuing to have sexual intercourse. It did not seek to establish that Marshall encouraged the initial penetration. The evidence justified a finding of the case made and the Crown was entitled to have appropriate directions put. The Crown should not be prevented from making the same case on a retrial. It was not at fault in inducing the error. It is true that with the wisdom of hindsight one can readily see how desirable it would have been had the Crown provided particulars. No doubt if it had done so, this problem would have been more readily identified; but the fact remains that it was not asked to do so and simply presented a case which, as it happened, required that the jury be given an instruction which the learned trial judge omitted to give. I note that no redirection was sought by counsel for Marshall at the trial.

13. With regard to Roughley, I agree with my brethren that there was evidence sufficient to find that he abetted Haywood in penetrating the complainant in circumstances amounting to rape and that there is no cause for this Court to hold that, absent any misdirection or material non-direction, a verdict of guilty would have been unsafe and unsatisfactory. I agree, however, that the directions given did not make sufficiently clear that in respect of count 10 there was no evidence justifying a verdict of guilt based on aiding Haywood. With respect, I consider as well that they did not sufficiently identify the evidence from which the jury might conclude, were they so minded, that each ingredient of abetting was made out nor sufficiently explain each such element.

14. Accordingly I would allow each appeal and quash all the convictions of each appellant. I would, however, order that each appellant be retried on all of these counts. It is inappropriate to address the applications for leave to appeal against sentence.

UNDERWOOD J I have read the reasons for judgment of Zeeman J and agree with them and the conclusions he has reached. I only wish to add a word of my own about two matters.

2. In support of ground 4 of the appellant Roughly's appeal against conviction on count 10, his counsel submitted inter alia that if there was evidence from which the jury could infer that he abetted Haywood to commit the crime of rape, such evidence was so meagre that in the circumstances of the case the verdict of guilty should be quashed because it was unsafe or unsatisfactory. He argued that those circumstances included the verdicts of not guilty on all the other counts of rape.

3. Since this appeal was argued the High Court handed down its decision in M v R [1994] HCA 63; (1994) 69 ALJR 83. It provides, to borrow the words of Mason CJ, Deane, Dawson and Toohey JJ at 6, "authoritative guidance to Courts of Criminal Appeal" by stating the basis upon which such courts shall determine a ground of appeal that the verdict is unsafe or unsatisfactory. It might respectfully be thought by some that this decision has dealt the sanctity of the jury verdict a savage blow. It stands in stark contrast to the view expressed by the High Court just over 70 years ago in Ross v R [1922] HCA 4; (1921-1922) 30 CLR 246 when Knox CJ, Gavin Duffy and Starke JJ said at 255-256:

"But we desire to add that if there be evidence on

which reasonable men could find a verdict of guilty,

the determination of the guilt or innocence of the

prisoner is a matter for the jury and for them alone,

and with their decision based on such evidence no Court

or Judge has any right or power to interfere. It is of

the highest importance that the grave responsibility

which rests on jurors in this respect should be

thoroughly understood and always maintained."

4. That distinction between the function of the trial judge and the function of the jury seems to have been confirmed as late as 1990 in Doney v R [1990] HCA 51; (1990-1991) 171 CLR 207 at 215, but since Ross the court's appellate functions have been considerably expanded at the expense of the integrity of the jury verdict. In M v R most of the previous High Court decisions that dealt with the ground of unsafe or unsatisfactory verdict eg, Whitehorn v R [1983] HCA 42; (1983) 152 CLR 657; Chamberlain v R (No 2) [1984] HCA 7; (1984) 153 CLR 521; Morris v R [1987] HCA 50; (1987) 163 CLR 454 and Chidiac v R [1991] HCA 4; (1991) 171 CLR 432 and the various approaches taken in those cases were discussed. Gaudron J agreed with the joint judgment of Mason CJ, Deane, Dawson and Toohey JJ with respect to "the nature of the enquiry involved when it is said that a verdict should be set aside as unsafe or unsatisfactory" (21). Brennan and McHugh JJ each expressed a view different from the majority but the law on this issue is now beyond debate. It is stated in the following passage in the joint judgment at 5:

"In most cases a doubt experienced by an appellate

court will be a doubt which a jury ought also to have

experienced. It is only where a jury's advantage in

seeing and hearing the evidence is capable of resolving

a doubt experienced by a court of criminal appeal that

the court may conclude that no miscarriage of justice

occurred. That is to say, where the evidence lacks

credibility for reasons which are not explained by the

manner in which it was given, a reasonable doubt

experienced by the court is a doubt which a reasonable

jury ought to have experienced. 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. In doing

so, the court is not substituting trial by a court of

appeal for trial by jury, for the ultimate question

must alway be whether the court 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."

5. Counsel for the appellant Roughly pressed the court with the proposition that the acquittal of all appellants on the other five counts of rape and attempted rape, necessarily means that the jury rejected the complainant's version of events. It was argued that the only explanation for the conviction on count 10 was that the jury misinterpreted the DNA evidence as corroboration of the crime of rape when that was not the case. It is true that the DNA evidence only corroborates sexual intercourse by Haywood and this was not an issue on the trial of any of the accused. The DNA evidence does not corroborate the issue of lack of consent. However, I do not accept the submission that the verdict is only explicable on the basis that the jury misinterpreted the value of the DNA evidence. The jury's verdicts of guilty of aggravated assault and assault, the former against Haywood and the latter against Haywood and Marshall, demonstrate that the jury accepted the substance of the complainant's evidence of the events leading up to the occurrences in the paddock. Indeed, that evidence was substantially corroborated on the trial against the appellant Roughley by his interview with the police, and on the trial of all appellants by the evidence of Mr Shea. It is highly unlikely that the jury would think it reasonably possible that shortly after those assaults the 16 year old complainant would have engaged in consensual sexual intercourse with the appellant Haywood in a paddock off West Morville Road.

6. The conviction of all appellants on count 10 and their acquittal on all the following counts except count 19, is consistent with the proposition that, apart from the appellant Haywood, the jury was not satisfied that the complainant accurately detailed which appellant did what to her and in what order. Such lack of satisfaction may have arisen out of the evidence of her state of unconsciousness and later shock, the evidence that she had undergone hypnosis before giving evidence in court and/or from an apparent conflict between her evidence that she awoke in the paddock and Haywood was on top of her, and Haywood's evidence (and on the appellant Roughley's trial his interview with the police) that the appellant Marshall was the first to have intercourse with her.

7. This is a case in which observation of the key witnesses while they gave their evidence; the complainant, Mr Shea and the appellants Haywood and Marshall, was of critical importance in reaching a verdict. It cannot be said that the totality of the evidence was such that properly directed as to the law, there arises in the case of the appellant Roughley a significant possibility that an innocent person has been convicted.

8. With respect the ground relied upon by all appellants relating to the admission of the complainant's evidence after she had undergone hypnosis, Zeeman J referred in his reasons to Steinhauser v Davies Serial No A6/1994 (available on SCALE), a decision of mine. It is unnecessary to discuss that case in detail for it suffices to say that there is nothing in it to suggest that the presiding judge in a criminal trial does not have an overriding duty to prevent the reception of inadmissible evidence whether there is objection or not. There is ample authority to the effect that there is such a duty. See Stirland v DPP (1944) AC 315; R v Gibson (1887) 18 QBD 537; Curtis v R (1972) Tas SR 21; Shaw v R (1951-1952) 85 CLR 365 at 381. The trial judge's duty is to ensure that the accused gets a fair trial according to law and if inadmissible evidence is received, even in the absence of objection, the trial is flawed. Steinhauser was an appeal from a magistrate's order of conviction for two breaches of the Traffic (General and Local) Regulations 1956. The applicant was represented by counsel in the court below. At the hearing in the court below, the prosecution sought to adduce opinion evidence to the effect that the point of impact occurred near the concentration of debris on the road. The learned magistrate asked counsel for the applicant if he objected to the reception of that evidence. Counsel said he did not and as part of the defence case, sought to adduce opinion evidence about the same subject matter from a defence witness whom he proffered as an expert. The motion to review claimed that error had occurred in the admission of opinion evidence as part of the prosecution case. It was not suggested that the concession by counsel was due to incompetence, mistake or inadvertence. The motion to review was dismissed on the basis that there had been express waiver. I accept that there may be some debate about the place of waiver in the law of criminal evidence, see eg Australian Evidence, ALC Ligertwood 37, and the cases there referred to and "Failure to Object to Inadmissible Evidence in Criminal Cases" M Weinburg QC, (1978) MULR 408, but there is no doubt that mere failure to object to the reception of inadmissible evidence in a criminal trial does not make such evidence admissible as a matter of law. Consequently, I find myself in complete agreement with Zeeman J that in a criminal trial, absence of objection on behalf of an accused will not make inadmissible evidence admissible.

ZEEMAN J The appellants stood trial on an indictment containing 20 counts. By 18 of those counts one or more of them were charged with the commission of crimes which involved violence towards a young woman ("the complainant"). The Crown case was that in the early hours of Christmas Day 1993 the complainant had been persuaded to enter a motor vehicle driven by one Shea, in which the appellants and one Last were passengers, for the ostensible purpose of indicating the location of a party and then to be taken home, but that instead she had been taken to remote areas where she was assaulted and subjected to various forms of sexual abuse, including rape. The two remaining counts alleged that Haywood and Marshall had assaulted Shea and Last.

2. Upon being arraigned each appellant pleaded not guilty to each of the crimes with which he was charged. Shortly after the commencement of the trial the Crown filed a nolle prosequi as to certain counts. The trial proceeded as to the remaining counts. Each appellant was convicted of one or more of the crimes with which he was charged.

3. On the Crown case the various crimes charged had been committed in the order in which they appeared in the indictment. Particulars of the crimes charged by the various counts and the disposition of each are as follows:

Count Appellant charged Crime charged Disposition

1 Haywood, Marshall Indecent assault Nolle prosequi

2 Haywood Assault Nolle prosequi

3 Haywood, Marshall Assault of Last Nolle prosequi

4 Haywood (principal)

Marshall (aider/abettor) Aggravated assault

Haywood - guilty

Marshall - not guilty

5 Haywood, Marshall Assault of Shea Nolle prosequi

6 Haywood (aider/abettor)

Marshall (principal) Assault Both guilty

7 Haywood (principal)

Marshall (aider/abettor) Assault

Haywood - no verdict

Marshall - not guilty

8 Haywood, Marshall Assault Nolle prosequi

9 Haywood (aider/abettor)

Marshall (principal)

Roughley (aider/abettor) Rape (vaginal)

All not guilty

10 Haywood (principal)

Marshall (aider/abettor)

Roughley (aider/abettor) Rape (vaginal)

All guilty

11 Haywood (aider/abettor)

Marshall (aider/abettor)

Roughley (principal) Rape (vaginal)

All not guilty

12 All appellants Indecent assault Nolle prosequi

13 Haywood (principal)

Marshall (aider/abettor)

Roughley (aider/abettor) Rape (vaginal)

All not guilty

14 Haywood (aider/abettor)

Marshall (aider/abettor)

Roughley (principal) Rape (oral)

All not guilty

15 Haywood (aider/abettor)

Marshall (principal)

Roughley (aider/abettor) Attempted rape (anal)

All not guilty

16 Haywood (principal)

Marshall (aider/abettor)

Roughley (aider/abettor) Attempted rape (anal)

All not guilty

17 All appellants Aggravated sexual assault

Nolle prosequi

18 All appellants Aggravated sexual assault

Nolle prosequi

19 Haywood Assault Guilty

20 Marshall Aggravated assault Nolle prosequi

4. The verdict of not guilty on count 9 was given by direction of the learned trial judge subsequent to a ruling, the circumstances of which I refer to in due course, that certain of the evidence proposed to be led from the complainant was inadmissible.

5. Each appellant was sentenced to a term of imprisonment, Roughley for 4 years and 6 months, Marshall for 6 years and Haywood for 7 years. Each of the appellants has appealed against his conviction or convictions and, in addition, each of Roughley and Marshall has applied for leave to appeal against sentence. Haywood abandoned his application for leave to appeal against sentence.

6. Insofar as the appeals against conviction are concerned, each appellant relies on a large number of grounds. In some cases, upholding a ground would have the result that a verdict of acquittal ought to be entered. In other cases, upholding a ground would have the result that it would be appropriate that there be an order for a new trial. It is necessary to consider all grounds which fall into the former category (Jones v R [1989] HCA 16; (1989) 166 CLR 409) but the conclusions which I have reached require some only of the grounds which fall into the latter category to be considered.

7. It is unnecessary to reproduce the grounds of appeal. It is sufficient to summarise the substance of those grounds which I have found it necessary to consider. That summary is as follows:

1 That the learned trial judge erred in admitting the

evidence of the complainant when the whole of her evidence

was inadmissible or, alternatively, ought to have been

excluded by him in the exercise of his discretion (Roughley

ground 7, Marshall ground 7, Haywood ground 5, except that

Marshall does not contend that the evidence was legally

inadmissible).

2 That the learned trial judge erred in refusing

applications made by Marshall and by Haywood for a separate

trial (Marshall ground 5, Haywood ground 2).

3 That the learned trial judge erred in refusing to permit

counsel for Roughley to cross-examine the complainant as to

whether Marshall was the first of the appellants to have had

sexual intercourse with her (Roughley ground 5, Marshall

ground 10B, Haywood ground 1).

4 That there was no evidence upon which the jury, properly

instructed, could have convicted Roughley or Marshall on

count 10 or, alternatively, that their convictions on that

count are unsafe and unsatisfactory by reason of the paucity

of evidence (Roughley grounds 1 and 4, Marshall grounds 1

and 4).

5 That the learned trial judge gave inadequate directions

as to aiding and abetting in relation to count 10 (Roughley

grounds 2, 2A and 3, Marshall ground 1A).

6 That the learned trial judge erred in permitting evidence

to be led from the complainant and questions to be put to

Haywood suggesting that he and Marshal were of bad

character, in that they had been imprisoned and had

committed the crime of sodomy (Marshall ground 10A, Haywood

ground 4).

8. At the trial, objection was taken by Marshall to the admissibility of the whole of the evidence proposed to be led from the complainant. In substance, Roughley took the same objection. Haywood's position was equivocal. Even though Haywood does not appear to have objected to the admission of the complainant's evidence, he ought to be permitted to argue that it was legally inadmissible because, for reasons which appear later, it was incumbent upon the trial judge to exclude inadmissible evidence, whether or not it was objected to. It does not appear that any appellant submitted that, in the event that any part of the complainant's evidence was found to be legally admissible, the learned trial judge nevertheless ought to exclude it in the exercise of his discretion.

9. Despite the failure of the appellants to so submit, the respondent accepts that it was implicit from the argument addressed to the learned trial judge that such a discretion was being invoked by Roughley and Marshall and that all appellants ought to be permitted to argue that his Honour should have excluded such of the complainant's evidence as he determined to be legally admissible in the exercise of his discretion. I have some difficulty with the proposition that Haywood should be allowed to argue that the evidence ought to have been excluded by the learned trial judge in the exercise of his discretion when he did not invoke that discretion. Nevertheless, having regard to the stance taken by the respondent and the conclusions which I have reached, I approach the matter on the basis that Haywood ought to be permitted to advance such an argument.

10. The matter which gave rise to the submission that the complainant's evidence was inadmissible was she had been questioned under hypnosis as to certain of the events which gave rise to the charges against the appellants. It was submitted to the learned trial judge, and he held (R v Haywood A37/1994), that post-hypnotic evidence is not admissible unless it satisfies the test laid down in R v McFelin [1985] NZCA 63; (1985) 2 NZLR 750, which case was adopted in R v Jenkyns (1993) 32 NSWLR 712. The learned trial judge proceeded upon the basis that those cases had been correctly decided and ought to be followed. In the latter case Hunt CJ at CL said, at 714:

"... there should be no inflexible rule that

hypnotically-induced testimony is inadmissible. That

was the view of the New Zealand Court of Appeal in R v

McFelin (at 753).

...

According to R v McFelin, the onus lies upon the party

seeking to introduce the hypnotically induced evidence

to establish that it is safe to admit that evidence in

the particular case, in the sense (as I understand it)

that it is sufficiently reliable as to provide a prima

facie reason for admitting the evidence: cf Wendo v The

Queen [1963] HCA 19; (1963) 109 CLR 559 at 572-573. In the present

case, the onus lies upon the Crown which seeks to

introduce the evidence of Mr Lewis; it does not lie

upon the accused to have the evidence excluded in the

exercise of the trial judge's general discretion to

ensure that the accused has a fair trial: cf MacPherson

v The Queen [1981] HCA 46; (1981) 147 CLR 512 at 519-520. That

distinction as to onus is also an important one."

11. Counsel for the Crown submitted to the learned trial judge that there is no rule that post hypnotic evidence is inadmissible and that such evidence ought only to be excluded if the judge exercises his discretion in favour of its exclusion. The respondent did not maintain that position upon the hearing of the appeals. Before this Court it accepted as correct the proposition advanced by the appellants, namely that before post hypnotic evidence which is objected to becomes admissible it must be shown to satisfy the test as to reliability laid down in R v McFelin (supra) and adopted in R v Jenkyns (supra). Although the parties adopted this common position, the Court ought not to proceed upon this basis unless it is persuaded that it represents the law. This was made clear to counsel during the course of argument and they advanced submissions directed to the question of admissibility.

12. In R v McFelin (supra) the New Zealand Court of Appeal gave consideration to the admissibility of the evidence of a 14 year old girl on the trial of two accused persons who had been charged with kidnapping her for ransom, by abducting her from her home. At the time of her abduction her kidnappers had placed something over her head so that she had been unable to see her captors or where she was taken. She remained masked throughout the time that she was in the presence of her captors and was unable to identify them either by sight or voice. The girl provided police officers with a lengthy and detailed account of events. Subsequent to providing this account, as part of the police investigations, she was interviewed under hypnosis by a clinical psychologist without adding anything of significance to the account she had given earlier to police. The complainant gave evidence at the trial but no mention was then made of the fact that she had undergone hypnosis as part of police investigations. Evidence of this fact was received by the Court of Appeal, apparantly in support of a ground of appeal which sought to assert that her evidence had not been admissible by reason of it being post hypnotic evidence.

13. The appeal was dismissed because the Court of Appeal concluded that it could not be doubted that the jury would have convicted the appellants even in the absence of any evidence from the victim. Nevertheless the court, by way of obiter dicta, made a number of observations concerning the admissibility of evidence of witnesses who have undergone relevant questioning whilst under hypnosis. Notwithstanding that they were made obiter, those observations are entitled to great respect and require careful consideration.

14. The court (at 751) commenced its consideration of the question of the admissibility of post hypnotic evidence with the proposition that where a Crown witness has undergone hypnosis that fact must be disclosed to the defence and that, if so required by the defence, all material relevant to the hypnosis must be supplied to it. It may readily be accepted that such duties are but incidents of the general duty of the Crown to avoid unfairness in its conduct of a prosecution. The fact that a witness has undergone hypnosis with a view to enhancing his or her memory at the very least is relevant to weight and may require the exclusion of evidence from that witness as a matter of discretion. Disclosure to the defence is necessary so as to avoid the possibility of a miscarriage of justice. At least in part the rationale for requiring disclosure is akin to the rationale for requiring that the Crown disclose to the defence known convictions of witnesses called by it, at least where the credit of such a witness might reasonably be expected to be a live issue (see R v Collister and Warhurst (1955) 39 Cr App R 20; R v Thompson (1971) 2 NSWLR 213).

15. The court (at 752) then gave consideration to the evidence before it as to the possible effect of hypnosis, which was in the form of affidavits and scientific writings. The submissions made by the appellants in the present case appear to have treated the court's conclusions on matters of fact as somehow being available to this Court as facts by which its decision may be informed. It would be quite inappropriate to proceed on such a basis, as I pointed out in different circumstances in Attorney-General v Smith A87/1994 at 5 (available on SCALE). I agree with the tentative view expressed by von Doussa J in Cheney v R [1991] FCA 37; (1991) 28 FCR 103 at 111 (a case in which the Full Court of the Federal Court of Australia declined to lay down general principles as to the admissibility of post hypnotic evidence) that "each case must be considered according to the circumstances and the expert evidence, if any, led at the trial". The present appeal is to be determined upon the basis of the unchallenged findings of primary fact made by the learned trial judge on the voir dire hearing, unchallenged evidence before his Honour which was not the subject of any specific findings and any matter of which the Court may take judicial notice.

16. After referring (at 752-753) to two Californian decisions (People of California v Shirley (1982) 31 Cal 3d 18 and People of California v Guerra (1984) 37 Cal 3d 385) in which it seems to have been held that any evidence of a witness on a matter as to which the witness had been questioned whilst under hypnosis was inadmissible, the court said:

"In our view the governing principle in New Zealand can

only be that, whenever post-hypnotic testimony for the

Crown is offered, the Judge should not admit it unless

satisfied that to do so is safe in the particular

circumstances. Regard should be had to the precautions

taken in the hypnotic and associated sessions; we will

return to this point shortly. Regard should also be

had to the strength of the other evidence. These

considerations apply to all evidence proposed to be

given by a witness who has been hypnotised, in

connection with the subject-matter of the case, at some

stage before the trial; but in practice it is likely to

be more difficult to show that the evidence can safely

be admitted if alleged recollections have emerged for

the first time during or after hypnosis."

17. After referring to provisions introduced into the Californian Evidence Code by way of mitigating the effect of the Californian cases, by which provisions post hypnotic evidence was made admissible provided that certain requirements were met, the court said (at 754-755):

"In the absence of statute law, the whole matter must

at present turn in New Zealand on the wide jurisdiction

to develop the rules of evidence and to prevent

unfairness in criminal trials - a jurisdiction

discussed recently in Busby v Thorn EMI Video

Programmes Ltd (1984) 1 NZLR 461, 471-473.

...

Obviously the greater the safeguards, the greater the

likelihood that the evidence will be admitted. For,

unless the hypnosis has been accompanied by safeguards

which the Judge considers reasonable in the particular

circumstances, it may become necessary to exclude even

evidence of the subject's pre-hypnotic recollections.

And when objection is made to any post-hypnotic

evidence, a voir dire hearing will be necessary before

or during the trial.

Accordingly we hold that in all cases where the Crown

proposes to call post hypnotic testimony:

1 The fact that the witness was hypnotised should be

disclosed to the defence, and all relevant transcripts

and information provided on request.

2 If objected to, the evidence should be excluded

unless the Judge is satisfied that it is safe to admit

it in the particular circumstances.

3 The Judge should have regard to whether the

hypnotism was carried out by a qualified person

independent of the police and the prosecution, and with

sufficient safeguards against the influencing of the

subject by suggestions or otherwise.

4 Pending the establishment of New Zealand guidelines,

in deciding whether safeguards are sufficient reference

may be made to overseas guidelines, such as the

Californian section set out in this judgment. They are

not mandatory in New Zealand but indicate standards to

be aimed at as far as reasonably possible.

5 The Judge should also have regard to the strength of

any confirmatory or supporting evidence to be called by

the Crown. This applies in all cases but is especially

important in relation to any recollection or purported

recollection which is not proved by the Crown to have

existed before hypnotism.

6 If he admits the evidence, the Judge should warn the

jury of the special need for caution before relying on

post-hypnotic evidence. The warning need not be in any

particular terms but should adequately alert the jury

to the dangers referred to in this judgment.

It will be apparent from what we have said that while

hypnotism may occasionally be valuable, even essential,

as an investigative technique, its use on a potential

witness should never be embarked upon without careful

consideration of the evidential risks. What we have

said has necessarily been concerned with hypnotism of

Crown witnesses. In general, however, the same

approach must apply as regards defence witnesses."

18. The fundamental principle laid down in those passages is that post hypnotic evidence which is objected to is inadmissible, whether sought to be led by the Crown or the defence, unless the trial judge exercises a discretion in favour of its admission by reference to the specific matters referred to. So stated the principle is startling in its possible application. It could result in the evidence of an accused person being wholly inadmissible. The following observations made by Brennan J in Pollitt v R [1992] HCA 35; (1991-1992) 174 CLR 558, at 573, are apt:

"It would be possible, no doubt, to redesign the law of

evidence with the assistance of psychologists and

philosophers versed in epistemology but it cannot be

done piecemeal or by extensions which are not linked to

an underlying principle. To attempt such alterations,

however pragmatically desirable in one case, will throw

the next case into confusion."

19. The basis upon which the New Zealand Court of Appeal decided that certain principles ought to govern the admissibility of post hypnotic evidence was that it had "wide jurisdiction to develop the rules of evidence and to prevent unfairness in criminal trials" which jurisdiction, it said (at 754), had been the subject of discussion by it in Busby v Thorn EMI Video Programmes Ltd (supra). Whilst the jurisdiction of appellate courts to develop the law of evidence is undoubted, the absence in McFelin of any discussion of matters of legal principle requires that the rules therein laid down be tested against such matters of principle. By reference to relevant principles I have concluded that it would be inappropriate for this Court to follow McFelin to the extent that it laid down a test of admissibility. With some hesitation, I would venture to suggest that that case may have taken an unduly pragmatic approach without sufficient regard for principle.

20. All evidence which is legally relevant, which is not affected by any exclusionary rule and which is given by a competent witness is admissible. The suggestion that there ought to be a new exclusionary rule concerning post hypnotic evidence is contrary to the general trend to reduce the impact of well settled exclusionary rules (eg Pollitt v R (supra)). Such a rule, if adopted, would not be an application or extension of any existing exclusionary rule.

21. The suggestion that the justification for the exclusion of such evidence is to be found in the competence of the witness, because post hypnotic evidence may not be the evidence of the witness in the sense of it being the product of the witness' memory, must be dealt with. Competence to give evidence attaches to the witness and not to the evidence proposed to be led from the witness although it may be the case that a witness is competent to give evidence on a certain subject matter but not others. A witness, by reason of mental illness or intellectual retardation, may not be possessed of that degree of mental capacity to understand the nature of the oath and thereby be incompetent as a witness (R v Hill (1851) 2 Den 254, 169 ER 495; Ranieri v Ranieri (1973) 7 SASR 418). Nevertheless the rule has long been accepted as that laid down by Lord Campbell CJ in R v Hill, at Den 262, ER 498, as being as follows:

"... it is for the Judge to say whether the insane

person ... understands the nature and sanction of an

oath; and then the jury are to decide on the

credibility and weight of his evidence."

22. In Toohey v Metropolitan Police Commissioner (1965) AC 595 the House of Lords held to be admissible evidence of disease or abnormality suffered by a witness affecting the witness' capacity to give a true and accurate account of relevant events (overruling R v Gunewardene (1951) 2 KB 600 which was to contrary effect) but did not suggest that such evidence could lead to the evidence being legally inadmissible. Lord Pearce, at 608, said:

"Human evidence shares the frailties of those who give

it. It is subject to many cross-currents such as

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

imagination and inaccuracy. Those are matters with

which the jury, helped by cross-examination and common

sense, must do their best. But when a witness through

physical (in which I include mental) disease or

abnormality is not capable of giving a true or reliable

account to the jury, it must surely be allowable for

medical science to reveal this vital hidden fact to

them. ... (It is) allowable to call medical evidence

of mental illness which makes a witness incapable of

giving reliable evidence, whether through the existence

of delusions or otherwise."

23. Even where the memory of the witness is shown to be the product of suggestions put to the witness whilst under hypnosis, so that the later pseudo memory is not a product of any form of recollection on the part of the witness, no question of the competence of the witness arises. In R v Horsfall (1989) 51 SASR 489 Cox J considered that such evidence might be excluded but apparently on the usual basis of excluding admissible evidence sought to be led by the Crown as a matter of discretion. His Honour, who had been referred to R v McFelin (supra) said, at 490-491:

"I am satisfied that there could be cases, quite apart

from insanity and other forms of permanent or temporary

unsoundness of mind, where the actual ability - not

inclination - of an intended Crown witness to give a

trustworthy account of something is shown to be so

fundamentally and pervasively and irremediably flawed

as to justify the exclusion of that person's evidence

because otherwise the accused could not have a fair

trial. Obviously such cases will be rare."

24. The authorities do not justify a conclusion that the prior questioning of a witness whilst under hypnosis goes to the competence of that witness to give evidence about the events the subject of such prior questioning. A witness may use a variety of methods to "refresh" his or her memory, many of which methods may not truly result in the memory being refreshed and some of which may result in there being engendered in the mind of the witness a pseudo recollection of events. Before coming to court a witness may refresh his or her memory in any way that the witness considers to be appropriate (King v Bryant (No2) (1956) St R Qd 570 at 583-584). The means adopted by a witness with a view to refreshing his or her memory go to weight and not to admissibility. The law has recognised that the testing of the evidence of a witness who has refreshed his or her memory from a document ought to be facilitated by entitling the cross-examiner to call for the production of the document. As Burbury CJ and Neasey J said in Mather v Morgan (1971) Tas SR 192 at 206 in support of that rule "in the interests of justice cross-examining counsel should be able to check the source of the witness's memory stimulus, and test the reliability of the witness's oral testimony by reference to it." It is difficult to see why any different rule should apply to post hypnotic evidence from that applying to a document used to "refresh" memory out of court when in reality such document may have done no such thing and may have given rise to a pseudo memory.

25. The rules laid down in R v McFelin (supra) as to what is required before post hypnotic evidence is admissible were said to apply only where objection is taken to the admission of the evidence. To make evidence inadmissible only if it is objected to is inconsistent with the general rule that it is incumbent upon the trial judge in a criminal case to exclude all inadmissible evidence, even if it is not objected to. That rule was expressed by Coleridge CJ in R v Gibson (1887) 18 QBD 537 at 542, acknowledged in Shaw v R (1952) 85 CLR 365 at 381 and held to apply in this state in R v Hall (1905) 1 Tas LR 21 and Collins v Morgan (1972) Tas SR 277 (NC 23). In Steinhauser v Davies A6/1994 (available on SCALE) Underwood J appears to have taken a contrary view but it would seem that his Honour was not referred to either of the earlier Tasmanian cases. The principle that a trial judge has an overriding duty to exclude inadmissible evidence, whether or not objected to, was recently re-affirmed in New South Wales in R v Birks (1990) 19 NSWLR 677 at 703-704.

26. It has been suggested that R v Alexander [1975] VicRp 74; (1975) VR 741, R v Gay [1976] VicRp 59; (1976) VR 577, R v Visser (1983) 3 NSWLR 240 and R v Roisetter (1984) 1 Qd R 477 are authority for the contrary proposition (Cross on Evidence, Australian edition para1675). With the exception of Visser, those cases were relied on in Steinhauser v Davies (supra). A close examination of what was decided in those cases discloses that none of them in fact decided that in a criminal case a trial judge does not have the duty to exclude inadmissible evidence, even where no objection to its reception is taken. R v Alexander (supra) was not concerned with the reception of inadmissible evidence because it was held that the relevant evidence was legally admissible. R v Gay (supra) is authority for no more than that where a conscious decision is made by counsel for an accused person not to object to the reception of inadmissible evidence there normally will be no occasion for a court of criminal appeal to interfere with the conviction by way of granting leave to appeal. R v Visser (supra) concerned a rule the effect of which was that the erroneous admission or rejection of evidence was not to be allowed as a ground of appeal without leave "unless objection was taken at the trial". R v Roisetter (supra) did not concern inadmissible evidence but evidence which might have been excluded as a matter of discretion.

27. The duty of the trial judge in a criminal case is to exclude inadmissible evidence whether or not it is objected to. Notwithstanding that duty, a failure to discharge it will not necessarily result in a conviction being quashed on appeal. A failure to object to the evidence may militate against the grant of leave to appeal where leave is required or may result in it being appropriate to apply the proviso. To the extent that these cases consider the duty of a trial judge to exclude inadmissible evidence, they merely state the obvious, namely that not every legal error which occurs during the conduct of a criminal trial will entitle a convicted person to succeed on appeal. I dealt with this matter in my judgment in Read v R A69/1993 at 11. An example of a statutory provision which has this effect is to be found in the Evidence Act 1910, s113 which, had the Court been referred to it, might have led to a different result in Collins v Morgan (supra). It remains the law that in a criminal trial the judge is required to exclude inadmissible evidence even where no objection is taken. A failure to do so constitutes error. It is inconsistent with that principle to make inadmissibility dependent upon objection being taken to its reception.

28. It is well established that in criminal proceedings a trial judge has an overriding discretion to exclude legally admissible evidence sought to be introduced by the Crown. The existence and nature of the discretion cannot now be doubted. It includes a discretion "to exclude evidence which, though technically admissible, would probably have a prejudicial influence on the minds of the jury, which would be out of proportion to its true evidential value" (R v Sang [1979] UKHL 3; (1980) AC 402, per Lord Diplock at 434). It also includes a discretion, by reason of public policy considerations, to exclude admissible evidence unfairly or illegally obtained (R v Ireland (No 1) [1970] HCA 21; (1970) 126 CLR 321; Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54; Cleland v R [1982] HCA 67; (1982) 151 CLR 1).

29. It is difficult to understand why the general discretion not to admit legally admissible evidence ought not to be the vehicle by means of which unreliable post hypnotic evidence may be excluded. Some suggestion was made that a rule to the effect that such evidence is not admissible, unless the Crown positively persuades the trial judge that such evidence ought to be admitted, would merely put it on the same footing as similar fact evidence. However that is to ignore the true nature of the discretionary judgment to be formed in considering whether similar fact evidence is to be admitted, as it was explained in the judgment of Gibbs CJ in Perry v R [1982] HCA 75; (1982) 150 CLR 580 at 585-586:

"Evidence that an accused person has a propensity to

commit crimes of the sort with which he is charged, or

is the sort of person who is likely to commit such

crimes, would ordinarily be regarded as relevant to the

question whether he did commit the offence in question.

Such evidence is excluded, not because it is

irrelevant, but because it is likely to be unfairly

prejudicial to the accused. A jury might attach too

much importance to it. It would, however, be a mistake

to think that because the reason for the rule is that

the evidence would be unfairly prejudicial, the rule

itself does no more than require the judge to exercise

a discretion, and to weigh the prejudicial effect of

the evidence against its probative value. Many cases

... have since recognised that the principles laid down

in Makin v Attorney-General (NSW) (1894) AC 57 are

authoritative. A trial judge must decide as a matter

of law whether the evidence is admissible, and it is

only if he decides that it answers the test of

admissibility that he need consider whether he should

exclude it in the exercise of his discretion. The

importance of the distinction between the two steps

which the trial judge is required to take can be seen

if the case goes on appeal, since the grounds on which

a court of criminal appeal will intervene will be

different depending on whether inadmissible evidence

has been received or there is a challenge to the

exercise of the judge's discretion.

It is true that in deciding whether the evidence is

admissible, questions of degree arise and that the

judgment to be made is to some extent discretionary.

It was said in Harris v Director of Public Prosecutions

(1952) AC, at p 710, that evidence of similar facts, to

be admissible, must have 'a really material bearing' on

the issues to be decided. The judgments in Reg v

Boardman (1975) AC 421 show that there are degrees of

relevance, and I respectfully agree with the statement

of Lord Wilberforce that the evidence to be admissible

must have 'a strong degree of probative force' ...".

30. Such evidence is admissible if it is relevant to an issue. If it is so relevant there is no discretionary judgment involved in a determination that it is admissible. The discretionary nature of the judgment required is in the nature of a value judgment as to whether the evidence has a sufficiently material bearing on the issues to be decided so as to be legally relevant. Reference may also be had to Sutton v R [1984] HCA 5; (1983-1984) 152 CLR 528, per Gibbs CJ at 534, per Brennan J at 548, per Deane J at 558-559 and per Dawson J at 564-565. What appears to be a test of admissibility which has regard to discretionary considerations is no more than a test which in its application requires a quantitative assessment of the cogency of the evidence. It so requires because a particular degree of cogency is the prerequisite for admissibility in that that degree of cogency is what makes it relevant.

31. The New Zealand Court of Appeal recognised that if the test laid down by it is to be taken as being a test of legal admissibility then broadly the same considerations apply regardless of whether it is the Crown or the defence which seeks to admit post hypnotic evidence. I cannot accept that evidence sought to be given or adduced by an accused person, which is from a witness who is competent and which otherwise is admissible, may yet be inadmissible because it is post hypnotic evidence. That is the most compelling reason for not following McFelin. Arguably such a proposition would be contrary to the statutory rights conferred upon an accused person (Criminal Code, s368) and indeed upon a defendant to a summary prosecution (Justices Act 1959, s38).

32. If there is any justification for the rule as to admissibility laid down in McFelin it is that post hypnotic evidence may not represent the actual memory of the witness, even though the witness may believe it to be so. I venture to suggest that many witnesses who have not undergone hypnosis give evidence which they honestly believe to represent an accurate recollection of an actual occurrence when they have no such actual recollection and when their memories have been modified or enhanced, perhaps unconsciously, by some external influence. The human memory is an imperfect instrument. It is subject to influence. Hypnosis may provide the means of exerting such an influence or it may be the influence. It is only one type of influence. I see no reason why a special rule of evidence ought to be laid down to apply only in cases where there has been that particular type of influence.

33. I consider that McFelin contains valuable observations relevant to the exercise of a discretion to exclude post hypnotic evidence but am of the view that its central proposition, namely that it is for a party seeking to adduce such evidence to satisfy the court in the exercise of its discretion that the evidence ought to be admitted before it becomes admissible, ought not to be followed in this State. The proposition that evidence should be held to be legally inadmissible unless a factor which potentially may have operated to reduce the reliability of that evidence is shown to have been sufficiently guarded against is contrary to principle. Absent the exercise of the discretion to exclude the evidence, matters concerning the possible unreliability of the evidence of a witness are for the jury to weigh up in their consideration of the case.

34. Nothing that was said in R v Jenkyns (supra) persuades me to take a contrary view. Hunt CJ at CL gave no reasons for concluding that he ought to follow McFelin although he indicated that he had had regard to the materials referred to in an appendix to his reasons for judgment. Insofar as those materials consist of decisions of Australian and New Zealand courts none of them, other than McFelin, support the proposition that post hypnotic evidence prima facie is inadmissible. I refer to those cases briefly.

35. In R v Jamal (1993) 69 A Crim R 544 there was a challenge to the admissibility of post hypnotic evidence proposed to be led from a Crown witness. Mathews J admitted the evidence but it is not entirely clear from the reasons expressed by her Honour for her ruling whether she approached the matter as being one of strict admissibility only or whether she embarked on considering whether she should exercise a discretion in favour of excluding the evidence. Whilst McFelin was referred to, the rule of evidence therein was not adopted. I tend to the view that her Honour's observations, at 566, concerning Van Vliet v Griffiths (1978) 19 SASR 195 indicate that she took the view that the exclusion of the evidence required a positive exercise of her discretion in favour of the accused. No question of admissibility arose in that latter case.

36. A number of the cases (R v McKay [1966] NZCA 28; (1967) NZLR 139; R v Geesing (1984) 39 SASR 111; Wentworth v Rogers (No 5) (Supreme Court of New South Wales, Court of Appeal, 3 October 1986, unreported)) did not concern post hypnotic evidence but attempts to lead evidence of what earlier had been said by the witness whilst under hypnosis. Clearly such evidence is inadmissible. In Cheney v R (supra) all members of the Full Court of the Federal Court expressly declined to lay down general principles of the type laid down in R v McFelin (supra). In R v Horsfall (supra) the evidence of a child, allegedly the subject of sexual abuse at the hands of the accused, who had been the subject of multiple questioning was excluded in the exercise of a discretion. It is but an instance of the discretionary exclusion of evidence by reason of matters going to reliability. I have not been able to discern anything from the remaining cases (R v Bryant (No2) (1956) St R Qd 570; R v Palmer (Supreme Court of New South Wales, Court of Appeal, 29 August 1976, unreported)) which concerns the question of admissibility of evidence of this nature.

37. It follows from the conclusion that R v McFelin ought not to be followed insofar as it lays down prerequisites for the admissibility of post hypnotic evidence that the learned trial judge erred when he concluded to the contrary. Those grounds of appeal which assert that evidence of the complainant which was allowed to go to the jury was inadmissible must fail.

38. It becomes necessary to consider whether any of the evidence given by the complainant at the trial ought to have been excluded by the learned trial judge in the exercise of his discretion. Because the learned trial judge did not purport to exercise such a discretion it becomes a matter for this Court to consider whether the evidence ought to have been excluded on discretionary grounds (Foster v R [1993] HCA 80; (1993) 113 ALR 1 at 5-6).

39. In order to determine the admissibility of the complainant's evidence the learned trial judge took evidence on the voir dire. That evidence included evidence from the complainant and from a medical practitioner experienced in hypnosis, Dr Grant, who questioned the complainant whilst she was under hypnosis. The evidence disclosed the accounts of relevant events provided by the complainant to police officers before she underwent hypnosis, what occurred whilst she was under hypnosis and the account given by her after hypnosis. In addition Dr Grant expressed opinions relevant to the question of the reliability of the complainant's post hypnotic memory, which opinions constituted the only evidence on this subject.

40. Dr Grant expressed certain conclusions, which he said were drawn from his experience and his reading of the literature. He said that hypnosis may assist a person in accurately enhancing memory recall and may lift the psychological veil from memories which have been repressed. In examination-in-chief he said that his experience indicated that there was little confabulation, fantasising or lying on the part of a person under hypnosis, although in cross-examination he agreed that a person is more likely to confabulate whilst under hypnosis. The appellants relied on a statement in evidence by Dr Grant that the "tendency to confabulate would be there because she would be under profound pressure to perform." However the context in which he made that statement indicates that the witness was speaking of a subject under pressure from the police. The evidence does not justify a conclusion that any such pressure was applied so that the statement relied upon is of no assistance.

41. The learned trial judge appears to have accepted various opinions expressed by Dr Grant which he set out in his reasons for his ruling as to the admissibility of the complainant's evidence. It has not been suggested that his Honour erred in accepting those opinions. The following of those opinions concerning persons questioned under hypnosis are of particular relevance:

1 The deeper the hypnosis the more likely it is that a

subject will confabulate but even then it is still unlikely

to occur.

2 The finer the detail sought by the questioner the more

likely it is that a subject will confabulate but the witness

had not seen much of this.

3 The deeper the hypnosis the greater is the degree of

likelihood that a subject will act upon suggestions

emanating from the hypnotist or other sources.

4 Whilst under hypnosis a subject may accept approximations

of memory as accurate recall.

5 Whilst under hypnosis a subject may confuse fantasy with

reality.

6 Whilst under hypnosis a subject may unconsciously fill

gaps in the memory with imaginary experiences.

7 Whilst under hypnosis a subject has a greater tendency to

guess about matters missing from the memory.

8 If a subject believes that hypnosis is likely to lead to

an accurate recall of past events then he or she is more

likely to purport to recall such events whilst under

hypnosis.

9 A subject who wishes to please the hypnotist or some

other person tends to provide the information which he or

she believes is expected.

10 If a subject confabulates or fantasises whilst under

hypnosis then he or she thereafter is likely to accept any

pseudo memory as being a genuine memory.

11 There is no entirely reliable clinical method of

determining whether a supposed memory of events recalled

under hypnosis is or is not accurate.

42. The crimes with which the appellants stood charged allegedly had been committed by them in the early hours of 25 December 1993. The complainant made her first statement to a police officer concerning relevant events between 4pm and 6.45pm on that same day when she was interviewed by Constable Louise Barker. She had earlier complained to a friend that she had been raped by "three guys" and had given him a general account of what she said had occurred. As a result of the account given to Constable Barker a statement was prepared which was signed by the complainant. In that statement the complainant did not identify either Roughley or Haywood by name, but referred to them as "2" and "6" respectively and referred to Marshall as "5" and as "Timothy".

43. I proceed to summarise what is contained in this statement of the complainant. Whilst walking along a Burnie street in the direction of her home very early on 25 December, having earlier spent some time at a hotel, she was spoken to by a person seated in the rear seat of a red utility which vehicle stopped alongside where she was walking. This person asked "where the party was". After some discussion, Shea, who was the driver of the vehicle, asked her to get into the vehicle so that she might show them where the party was and promised that thereafter he would drive her home. The complainant got into the rear seat of the vehicle which was then driven off. Haywood was seated in the front passenger seat and seated in the rear seat were Last, Marshall and Roughley. The complainant was seated between Last and Marshall.

44. The vehicle was driven along Mount street. It did not stop at the house where the party was being held. The complainant then told "them" to stop and turn around but her demands were ignored. The vehicle reached the intersection with Three Mile Line and turned into, and proceeded along, this road whilst the complainant continued to request that the vehicle be turned around. Just before the vehicle reached a further intersection Roughley leant over from the front and Haywood leant over Marshall. Each took hold of the complainant's shirt in the region of her breasts. The vehicle proceeded through the intersection and stopped at the side of the road near a white barn. Haywood said "We should all jump her". Last got out of the vehicle, leant over to the complainant and whispered to her to hurry and go. Thereupon Haywood grabbed her by the hair and pulled her head back. Last asked that the complainant be permitted to go whereupon each of the appellants got out of the car and at least two of them proceeded to beat up Last. Whilst this was happening the complainant remained in the vehicle with Shea and begged him to drive her away from the area. Shea declined, saying that if he did so "they" would kill him. Haywood then returned to the vehicle and unsuccessfully attempted to pull the complainant from the vehicle by her legs and punched her to the head and stomach whilst she kicked him, screamed and cried. This occurred whilst the complainant was seated in the front of the vehicle, although the circumstances in which the complainant came to be there were not explained in the statement.

45. The appellants then all got back into the vehicle, Roughley in the front and the others of them in the rear. On looking outside the complainant noticed that Last was on the ground and that he "looked a mess". She pleaded with the appellants to be allowed to go and promised that she would not "dob on yous". Marshall suggested that she be allowed to leave the vehicle but Haywood grabbed her by the back of the hair, put a knife up to her throat and said "You're nothing but a lying little slut". At Marshall's insistence, Haywood put the knife away and Shea then drove the vehicle to another location in the vicinity of a quarry where the vehicle stopped and Roughley and Haywood got out. The complainant remained seated next to Shea in the front of the vehicle, crying, until Haywood pulled her out and punched her in the stomach with his fists. The complainant then sat down on the ground and continued to cry. She was still in that position when Haywood kicked her to the head and she lost consciousness.

46. When the complainant regained consciousness she was in a paddock, naked and Haywood was on top of her. She felt a knife which he was holding against her throat. He said "I should kill you you slut and dump you in the woods over the back" and laughed. Marshall told him to stop, saying that she had had enough, but Haywood remained on top of her, with his penis inside her vagina, and struck further blows to her head. He said to her "I'm gonna give it to you up the arse bitch cause I know you like that sort of thing cause all women do". Roughley said "Get off its my turn you bastard". Haywood then got off and the complainant tried to get up. She was prevented from doing so when Haywood took hold of her shoulders from behind and pinned her to the ground. This was followed by Roughley pulling her by the hair. She continued to cry.

47. Haywood then sat down to the complainant's right, took her hand and put it on his penis, indicating that he wished her to masturbate him. She refused and he then put his hand over the complainant's hand and proceeded to masturbate. At the same time Roughley engaged in vigorous vaginal intercourse with the complainant. She was telling him to stop and that he was hurting her. Haywood then elbowed the complainant and slapped her about the face. After ejaculating, Roughley withdrew from the complainant and got off her. She then closed her legs but Haywood grabbed her in the vaginal area, spread her legs and got on top of her. At the same time Roughley kept "scruffing" at her breasts. When Haywood then got off, Roughley put his penis into her mouth. She bit it, in response to which he called her a bitch and Haywood kicked her in the right hip.

48. Marshall then came over and told the other appellants, who by then were standing, that they had "had enough now". Haywood threatened the complainant that he had "contacts" in the event that she "dobbed" on him and he went "down". He and Roughley then walked off. Marshall came over to the complainant, said that he was sorry and assisted her in getting dressed. He accompanied her through the paddock back to the road where she vomited. By this time the other appellants had left in the vehicle and Marshall told the complainant that he would take her home. There then followed an account of subsequent events which it is not necessary to recount for present purposes. Whilst they involve all appellants they do not concern events which were the subject of any count contained in the indictment.

49. On 29 December 1993 the complainant again spoke to police and as a result a further statement was prepared which she signed. That statement added to the information contained in the earlier statement. In particular it contained the following relevant new information:

1 Whilst at the hotel the complainant had spoken to Last

and had told him about a party. That explained how later

she came to be asked by Last about the location of "the

party".

2 Whilst Last was being beaten up Haywood kept trying to

drag her from the vehicle and when he failed to achieve his

purpose he struck both her and Shea.

3 Haywood was carrying a knife in a leather belt and he

removed the knife from it.

4 Prior to Haywood removing the knife and whilst in the

car, he, Marshall and Last had been smoking "joints of dope"

and he and Roughley had been drinking beer.

5 Both whilst raping the complainant and thereafter,

Haywood and Marshall bragged about having been to gaol.

50. On 3 January 1994 the complainant provided the police with a statutory declaration in which she expanded on the accounts given in the two earlier statements. In particular she provided the following further information:

1 When the vehicle first came to a stop Last got out, told

the other men that "we" would walk back to the party and

then looked at Marshall and Haywood and told the complainant

to get out of the vehicle and run.

2 Whilst Haywood and Marshall were beating up Last and

Roughley was near the front left mudguard of the vehicle,

she "jumped" from the rear of the vehicle and told Shea to

drive off. That explained how she came to be in the front

of the vehicle.

3 When Haywood was hitting the complainant (apparently at a

time when he was endeavouring to pull her from the vehicle)

Marshall got into the rear seat, pulled her hair so that she

was forced to face him, put a knife to her cheek and said

"If you don't tell I won't have to use this knife, stop your

fucking crying and listen bitch". Marshall then told her

that if she co-operated she would not be hurt.

4 Shortly before the vehicle came to a stop in the area

where the complainant said that she had been raped, she

overheard a conversation between Marshall and Haywood

concerning "how they got it up the arse in gaol and how they

were going to do it to me and make it hurt".

5 Before fully regaining consciousness in the paddock and

seeing Haywood on top of her with a knife the complainant

had a feeling of hearing "blurred" voices and of someone

heavy on top of her. At the very least, this statement left

it open that the heavy person was someone other than

Haywood.

6 Marshall as well as Haywood had been wearing a leather

belt with a pouch for holding a knife. Whether the

complainant was intending to convey that Marshall had been

carrying a knife is unclear.

7 Haywood pulled a sleeper earring from the complainant's

left ear at about the time that Last was being beaten up and

that that earring was still missing.

51. Those three statements, which largely complemented one another, constituted the account of the relevant events given by the complainant to police officers before she underwent hypnosis. In addition the complainant had told Vicki Bell, a sexual assault worker, that the appellants had attempted to have anal intercourse with her. Her explanation for not telling any police officer about this was that she was too embarrassed to do so. It will be observed that the complainant provided police officers with a very extensive and detailed account of what had occurred. Nevertheless she was concerned that she was unable to recall how she came to be in the paddock.

52. It was in an endeavour to regain some memory as to how she came to be in the paddock that she underwent hypnosis administered by Dr Grant on 4 January 1994. Dr Grant was known to the complainant's parents. Whilst the hypnosis session was conducted in a room at the Devonport police station normally used to video record interviews of suspects, it was arranged privately and in no way carried out at the instance, or under the auspices, of any police officer. The police merely provided a convenient venue where the session might be video recorded and charged the cost thereof to Sexual Assault Support Service. A video recording of the questioning of the complainant by Dr Grant, both before she was hypnotised and whilst under hypnosis, was before the learned trial judge on the voir dire and constitutes a valuable and reliable record of what occurred.

53. Before being hypnotised by Dr Grant the complainant provided him with a very brief outline of relevant events and he had been supplied with copies of the statements which she made to police officers. In particular she told him that she had been raped by Haywood and Roughley but was uncertain as to whether she had been raped by Marshall; that Haywood had assaulted her by hitting her, pulling her hair and holding a knife up to her throat; that Marshall had assaulted her by putting a knife to her face; and that Last had tried to help her by telling her to run away whilst he was being beaten up. None of that was inconsistent with what the complainant had told police officers. In particular her uncertainty as to whether she had been raped by Marshall was entirely consistent with her feeling that a heavy person had been on top of her before she fully regained consciousness in the paddock. Marshall would appear to be the heaviest of the appellants and what the complainant might have been taken to convey by her references to a heavy person was that this person was heavier than the other two appellants, each of whom, on her account, had been on top of her whilst engaging in sexual intercourse.

54. Whilst being questioned under hypnosis the complainant was unable to recall how she had come to be in the paddock. That is an important matter. She agreed to be questioned whilst under hypnosis in an endeavour to acquire some memory concerning that aspect of the matter. Her failure to achieve that object may be taken as an indication that she did not accept approximations of memory as accurate recall, that she did not fill in gaps in the memory with fantasy, that she did not guess about matters missing from the memory and that she did not erroneously purport to recall matters so as to please Dr Grant or anyone else.

55. Relevant statements which the complainant did make whilst under hypnosis and being questioned by Dr Grant and my comments concerning them are as follows:

1 Shortly before she had been raped she was kicked in the

head by Haywood which had resulted in her losing

consciousness.

2 She thought that the heavy person on top of her shortly

before she fully regained consciousness "may have been"

Marshall. She expressed her reason for this as follows:

"Cause he was the biggest out of the lot of them. And I

couldn't move. Feels like me hands being held down". She

added to what she had previously said as to her recollection

of events when the heavy person was on top of her when she

said that she was aware that intercourse was then taking

place and that she heard Marshall saying "this is like

havin' a dead root". It is appropriate to note that the

complainant did not then claim that the person on top of her

was Marshall but merely concluded that it might well have

been Marshall because he was the biggest of the appellants

and the person on top of her was heavy.

3 All three appellants attempted to have anal intercourse

with her but she had successfully resisted their endeavours

to this end. Whilst this had not been the subject of any

previous statement to the police the information was not new

because the complainant had previously told Ms Bell of such

attempts. No endeavour was made to cross-examine Ms Bell,

who gave evidence on the voir dire, as to precisely what the

complainant had told her about the attempts by the

appellants to effect anal penetration.

4 Marshall had a knife and then Haywood had one. In

substance this was not new material. The complainant had

previously described how each of these appellants had

assaulted her by the use of a knife.

5 Marshall held her down both whilst Roughley put his

fingers in her vagina and then Haywood did the same. Whilst

the complainant had previously related such conduct on the

part of Haywood she had not previously mentioned the

involvement of Marshall or that Roughley had engaged in such

conduct.

56. Shortly after the completion of the hypnosis session the complainant provided the police with a statutory declaration containing further statements concerning relevant events. In that declaration she stated that Marshall had been the first of the appellants to have vaginal intercourse with her, and that thereafter Haywood had done so, followed by Roughley and then by Haywood for a second time. She said that thereafter Haywood said something about "giving it to her up the arse" and went into some detail of the attempts by the three men to effect anal penetration. No such detail had been sought or provided whilst the complainant was being questioned under hypnosis. She then related attempts at digital penetration in the circumstances described by her whilst under hypnosis and that eventually Haywood sat across her chest, held a knife at her throat and threatened to kill her and throw her into a wooded area at the rear of the paddock.

57. The learned trial judge admitted all the evidence proposed to be led from the complainant other than evidence of the alleged rape by Marshall and of the alleged digital penetration by Haywood and Roughley. Substantially the whole of the evidence of the complainant which was admitted accorded with the accounts which she had provided before undergoing hypnosis and which were not qualified by her whilst being questioned under hypnosis.

58. The approach which I propose taking to the question as to whether the evidence should have been excluded is to consider whether the requirements of guidelines adopted in R v McFelin (supra) were observed. If an application of those guidelines indicates that the evidence of the complainant satisfied the requirement as to reliability sought to be given effect to by them it is difficult to see why the evidence should have been excluded. There is nothing in the evidence of Dr Grant which suggests that any test as to reliability more stringent than that adopted in McFelin ought to be adopted in considering whether the evidence of the complainant should have been excluded. As I have concluded that in substance all the requirements laid down in McFelin were observed, it is unnecessary to determine whether a substantial failure to comply with the McFelin guidelines ought to lead to the exclusion of relevant evidence. Nothing that I say in these reasons ought to be construed as requiring exclusion in such circumstances.

59. The appellants submitted that the learned trial judge erred in reaching the following conclusions (R v Haywood (supra) at 8):

"Regardless of where the onus of proof lies, as I have

already indicated, I am satisfied that in respect of

(the complainant's) pre-hypnotic memory all relevant

guidelines have been observed. In particular I find

that there is clear and convincing evidence that the

hypnosis has not so affected her memory as to render

the pre-hypnotic recollections unreliable or so as to

substantially impair the capacity of defence counsel to

cross-examine the witness concerning those

recollections."

60. The appellants submitted that, contrary to the findings made by the learned trial judge, the evidence established that the guidelines laid down in McFelin had not been observed in the following respects:

1 The complainant's answers whilst under hypnosis to a

significant degree were elicited by leading questions

addressed to her by Dr Grant.

2 The complainant may have been placed under pressure to

provide certain answers by reason of the presence of Ms Bell

whilst she was questioned under hypnosis.

3 The complainant may have been placed under pressure to

provide certain answers by reason of the hypnosis having

been carried out at a police station.

4 There were significant departures from the guidelines set

out in the Californian Evidence Code, which were adopted as

being appropriate in McFelin.

61. The primary basis upon which it was submitted that Dr Grant had elicited information from the complainant by means of leading questions was that in the course of questioning the complainant he used the word "rape", rather than a more neutral term. It may be, as Dr Grant conceded in cross-examination, that the word is an emotive term (although I have reservations about that) and that it may have encouraged the complainant to provide further information. That does not make a question which employs this word a leading question in circumstances where the complainant previously had asserted in unequivocal terms that she had been raped by at least two of the appellants and where her account left open the possibility that she also had been raped by the third appellant, Marshall.

62. Prior to hypnotising the complainant, Dr Grant asked her who had raped her. As the complainant had already clearly told the police and Ms Bell in quite clear and emphatic terms that she had been raped by at least two men it can hardly be said to be leading for Dr Grant then to ask her who had raped her. Those questions addressed to the complainant by Dr Grant which employed the word "rape" did not suggest to her that she had been raped and certainly did not suggest the answer, such a suggestion being the hallmark of a leading question. Having carefully read the transcript of the hypnosis session, I have come to the conclusion that it is fanciful to suggest that any of the questions addressed by Dr Grant could be described as leading in the sense that they suggested a particular answer.

63. It was submitted by the appellants that the evidence of Dr Grant was to the effect that the presence of Ms Bell may have placed the complainant under pressure. The relevant evidence is to be found in the following passages taken from the cross-examination of Dr Grant by counsel for Roughley:

"Would you agree that as a general proposition that in

matters such as this if the matter - if the information

is later perhaps to be used as evidence, that only the

hypnotist and the subject should be present? ... Well,

I thought long and hard about that, it has always been

my way to have whoever the patient wants in the room

with her and this was without any knowledge of any of

the safeguards that were meant to be laid down which I

didn't know of - or didn't see until well after the

session. To me, whatever makes the patient feel more

relaxed and puts her at ease, that is important to me.

Did she expressly state that she wanted Vicki Bell in

the room? ... I don't think she expressly stated but

umm, I said that whoever you want in the room.

Right, and Vicki was there, but wouldn't you agree that

again, it's in a police station and there's a lady from

the sexual assault referral service there, it might

again reinforce in her mind that she's expected to

provide information ... I don't see that that's in

itself a big factor.

Not a big factor, but in terms of a person's

suggestibility - level of suggestibility, that

suggestion may be very very subtle mighn't it? ... It

would be very subtle.

But a subtle factor may have an impact on her

nevertheless might it not, such as a person in the role

of Miss Bell being present in the room ... Yes, it's

nice for the patient to have someone there that she's

been able to confide in previously, I mean here we are

in an enclosure - I'm pretty big and sometimes to some

people very threatening kind of person and for her to

have someone in the room with her, I'd say it would be

reassuring to her.

I don't dispute for a second that it would be

reassuring, but I want you to concede that it might

have the added effect of making her feel under

pressure. ... Yes, yes."

64. Counsel did not explore this aspect of the matter any further. In particular there was no evidence of the nature of the pressure which the complainant might have felt or the effect, if any, that such pressure might have had on the accuracy of the account given by the complainant whilst under hypnosis. Counsel's submission as to the relevance of the evidence of possible pressure placed on the complainant by the presence of Ms Bell was by way of challenging the suggestion said to have been made by the learned trial judge that the presence of Ms Bell "may not have provided any cues to the complainant during the interview". I do not understand the learned trial judge to have expressed himself in this way. What his Honour actually said in the reasons for his ruling was as follows:

"I note that she (ie the complainant) had her eyes

closed during the whole of the hypnosis session, and

therefore, although Mrs Bell was present in the room at

the time and the videotape did not show what, if

anything, Mrs Bell was doing, she said nothing of any

significance and it is obvious that any movement which

she made could not be observed through (the

complainant's) closed eyelids. I could not detect any

audible sounds made by Mrs Bell which may have acted as

subtle or overt cues. I therefore think that the

possibility of (the complainant) being influenced by

... the activities of those present, is practically

non-existent."

65. I have viewed and listened to the video tape and this has confirmed that in that passage the learned trial judge correctly stated what may be seen and heard and that his conclusion as to the likelihood of the complainant having been influenced by those present, in particular Ms Bell, was the only conclusion reasonably open. All that the appellants are able to rely upon is that the mere knowledge of the complainant that Ms Bell was present in the room during the hypnosis may have acted as some form of pressure upon her to give information which she thought Ms Bell wished her to provide. There is no evidence that this occurred. Although Dr Grant admitted to the possibility that it had occurred, the empirical evidence is to the contrary. The complainant agreed to be questioned under hypnosis because she wished to be able to recall how she came to be in the paddock. If the complainant had felt that she was under pressure to provide information by reason of wishing to please those whom she considered were expecting her to provide it, with the attendant risk that such pressure might lead her to provide incorrect information, then it might have been expected that she would have given some account as to how she came to be in the paddock. She gave no such account.

66. The appellants rely upon evidence of Dr Grant that it was "unfortunate" that the hypnosis was carried out at a police station. There were of course practical reasons for choosing the police station as the venue because it was able to provide the facilities by means of which the interview under hypnosis could be recorded on video. Whilst Dr Grant considered the venue to be unfortunate, nothing that he said in cross-examination supports the proposition that the fact that the session was conducted in a police station had the capacity to affect the reliability of whatever account she gave whilst under hypnosis. The learned trial judge concluded that he did not see "the fact that the hypnosis was carried out at the police station as having any potential effect upon what (the complainant) may or may not have recalled". I agree that that was the appropriate conclusion to reach on the evidence.

67. The appellants submitted that there had occurred significant departures from the "guidelines" (which I assume was intended to be a reference to statutory pre-conditions for admissibility) set out in the Californian Evidence Code and that that ought to be taken as leaving open the real possibility that the account given by the complainant whilst under hypnosis was unreliable. The Californian provisions, as they are reproduced in R v McFelin (supra) at 753-754, provide as follows:

"(a) The testimony of a witness is not inadmissible in

a criminal proceeding by reason of the fact that the

witness has previously undergone hypnosis for the

purpose of recalling events which are the subject of

the witness' testimony, if all of the following

conditions are met:

(1) The testimony is limited to those matters which

the witness recalled and related prior to the hypnosis.

(2) The substance of the prehypnotic memory was

preserved in written, audiotape, or videotape form

prior to the hypnosis.

(3) The hypnosis was conducted in accordance with all

of the following procedures:

(A) A written record was made prior to hypnosis

documenting the subject's description of the event, and

information which was provided to the hypnotist

concerning the subject matter of the hypnosis.

(B) The subject gave informed consent to the hypnosis.

(C) The hypnosis session, including the pre- and post

-hypnosis interviews, was videotape recorded for

subsequent review.

(D) The hypnosis was performed by a licensed medical

doctor or psychologist experienced in the use of

hypnosis and independent of and not in the presence of

law enforcement, the prosecution, or the defense.

(4) Prior to admission of the testimony, the court

holds a hearing pursuant to Section 402 of the Evidence

Code at which the proponent of the evidence proves by

clear and convincing evidence that the hypnosis did not

so affect the witness as to render the witness'

prehypnosis recollection unreliable or to substantially

impair the ability to cross-examine the witness

concerning the witness' prehypnosis recollection. At

the hearing, each side shall have the right to present

expert testimony and to cross-examine witnesses.

(b) Nothing in this section shall be construed to

limit the ability of a party to attack the credibility

of a witness who has undergone hypnosis, or to limit

other legal grounds to admit or exclude the testimony

of that witness."

68. It must be remembered that by themselves the provisions of the Californian Code do not establish that any particular safeguards ought to be adopted when a potential witness is subjected to hypnosis for the purpose of seeking to enhance his or her memory in this State and that I am considering its provisions only upon the basis that they were adopted in McFelin and in the overall context of whether the evidence satisfied the McFelin test. The fact that a legislative body elsewhere has seen fit to provide that post hypnotic evidence is admissible only if certain steps are taken in connection therewith does not establish that such steps ought to be taken before it is safe to admit the evidence in a jurisdiction where the enactment does not have the force of law.

69. The learned trial judge concluded that there had been no departures from the the standards laid down by the Californian Code, except for insignificant departures from the requirements of s795(a)(3)(A) and (D). The appellants did not submit that there had been other departures, but submitted that those departures which the learned trial judge considered to be insignificant were in fact significant.

70. The learned trial judge's conclusion that there had been departures from the Californian provisions in two respects were unduly favourable to the appellants. The obvious purpose of s795(a)(3)(A) is to ensure that there is in existence a record of the recollections of the subject concerning relevant events before undergoing hypnosis and of the material made available to the hypnotist. The appellants submitted that this provision was not observed because Dr Grant did not obtain a full statement from the complainant before hypnotising her.

71. I do not understand the provision to impose any such requirement. In particular it does not require that the hypnotist make a written record of the subject's pre-hypnosis account or of the information provided. It merely requires that such a record be brought into existence before hypnosis takes place. The identity of the maker of such a record is irrelevant. The obvious purpose of the requirement is so that the post hypnotic account may be compared with the pre hypnotic account. With one minor exception, there was in existence a written record of the complainant's account in the form of the three statements made by her to police officers. The exception concerned what the complainant had told Ms Bell concerning the attempts at anal penetration.

72. The appellants submitted that s795(a)(3)(D) was not observed because the hypnosis was not performed independently, and out of the presence, of police officers. Essentially I have already dealt with this submission in relation to the submission that the hypnosis ought not to have been conducted at a police station. The only police officer in whose "presence" the hypnosis occurred was the video camera operator, who could not be seen by the complainant. On any fair interpretation of the surrounding circumstances the hypnosis was performed independently of any prosecution or law enforcement agency and out of the presence of any person associated with such an agency.

73. There is much to be said for the proposition that, having regard to the evidence before the learned trial judge, the Californian provisions represent a desirable code of conduct to ensure that relevant dangers are guarded against. Accepting that, then it may be said that with a very minor exception what is contained in those provisions was observed in connection with the hypnosis of the complainant. The exception only affected the complainant's evidence concerning attempts at anal intercourse. As that evidence was not admitted by the learned trial judge it is of no relevance.

74. Dr Grant agreed with the propositions put to him during the course of a very able cross-examination by counsel who then appeared for Roughley that there were "major differences" between what the complainant said whilst under hypnosis and her pre-hypnotic recollections and that "the information that arose from the hypnosis session adds an absolutely massive amount of detail" to what she had recounted in her first statement. I attach no significance to those concessions. It is a matter for the Court to determine whether there were such differences. The opinions expressed by Dr Grant as to this aspect of the matter are of no assistance and have no evidentiary value. In any event, as to the latter concession, a comparison of the initial statement of the complainant to the police with what she said whilst under hypnosis was of no significance because that initial statement did not represent the totality of the complainant's pre-hypnotic recollections of relevant events.

75. The appellants submitted that the conclusions expressed by Dr Grant were justified because before she underwent hypnosis the only acts of a sexual nature which the complainant was able to say with any degree of certainty had occurred in the paddock were acts of rape by way of vaginal intercourse, twice by Haywood and one by Roughley, whereas thereafter she claimed that:

1 she had been raped vaginally by Marshall, when she had

not earlier made any such allegation;

2 attempts had been made to rape her anally, when earlier

she had had no more than a suspicion that such attempts had

been made; and

3 Roughley and Haywood had made attempts to effect digital

penetration of her vagina, when she had not mentioned this

earlier.

76. The appellants submitted that by the statements made by her before she underwent hypnosis the complainant at least impliedly asserted that as she regained consciousness in the paddock Haywood was on top of her holding a knife to her face when the evidence given at the trial was not to this effect. The effect of this submission was that the evidence given by the complainant did not represent a pre-hypnotic recollection and that the learned trial judge erred in concluding to the contrary.

77. The relevant evidence-in-chief led from the complainant was as follows:

"MR COATES: And what happened then? ... I blacked out.

And what's the next thing you can recall? ... Um, I was

in a paddock and someone was on top of me.

And what were you - what was the state of your

clothing? ... I had none on.

And shortly after you woke up in the paddock, did Mr

Haywood do something? ... Yes.

And what did he do to you? ... He was on top of me.

And when you say he was on top of you, what do you

actually mean by that? ... He had his penis in my

vagina.

And did he have anything? ... He had a knife.

And was he doing anything with the knife? ... He put it

up to my throat and he told me that he didn't believe

that I was (sic) going to dob on him.

Sorry, I didn't hear that ... He told me that he didn't

believe that I wasn't gonna dob on him.

Well did he say anything about what he was going to do

about that? ... He said that he should kill me and dump

me in the woods where no-one would find me.

Now did he call you anything? ... I can't remember.

You can't remember. Okay. Now was this when he was

still on top of you and had his penis inside your

vagina? ... Yes.

Did he say anything else about what he was going to do?

... He said that he was going to give it to me up the

arse, because he knew all women liked that.

And whilst Mr Haywood was on top of you, did anybody

else say anything? ... Roughley told him to get off,

because it was his turn.

And when Mr Roughley said that, did he try and do

something? ... He tried to pull Haywood off.

So he tried to pull Mr Haywood off you? ... Yes.

And what happened after that? ... He then, Haywood got

off and then Roughley got on top of me.

And when you say Mr Roughley got on top of you, what

did he do when he got on top of you? ... He put his

penis in my vagina.

When Mr Haywood was on top of you, where was (sic) Mr

Roughley and Mr Marshall? ... They were standing there,

watching."

78. I consider the effect of this evidence to be that when the complainant regained consciousness some unidentified person was on top of her, that thereafter Haywood got on top of her and that he then proceeded to have sexual intercourse with her. The absence of any reference by the complainant to the identity of the first person and as to what he was doing was in obedience to the learned trial judge's ruling that evidence as to those matters was inadmissible. Had she been permitted to give such evidence it may be assumed that it would have been to the effect that Marshall was the first of the appellants to have had intercourse with her.

79. I do not accept the submission that the totality of the complainant's expressed recollections before she underwent hypnosis was to the effect that the first person whom she was conscious of being on top of her in the paddock was Haywood. Although in her initial statement to police she stated that when she regained consciousness Haywood was on top of her, she modified this in her subsequent statement of 3 January 1994 in which she referred to a heavy person being on top of her before she fully regained consciousness. That statement suggests that this person was not Haywood and that the complainant was not then able to identify that person.

80. It ought to be said that whilst being questioned under hypnosis the complainant did not claim to have any recollection of Marshall having been on top of her. Rather, by reference to the weight of the first person who had been on top of her and other considerations, she concluded that that person must have been Marshall. It is likely that the evidence she gave on the voir dire to the effect that the first person who had been on top of her was Marshall was not based on any form of recollection as to the identity of that person but was a conclusion drawn by her from those facts which she did recall. What the complainant had not said before undergoing hypnosis was that she recalled Haywood getting on top of her and commencing an act of sexual intercourse, but even on her pre-hypnotic account it was implicit that this must have occurred. Her identification of Marshall after she had been questioned under hypnosis amounted to no more than a conclusion drawn from those facts which she did recall, namely that the person on top of her was very heavy and the heaviest of the three appellants was Marshall.

81. For this reason direct evidence from the complainant that it was Marshall who was on top of her as she was regaining consciousness would not have been admissible in any event because such evidence did not represent a fact of which she had any recollection. Nevertheless I consider the learned trial judge's exclusion of all evidence from the complainant relevant to the question of the identity of the first person to have been on top of her to have been unduly favourable to the appellants. At the very least the complainant ought to have been permitted to describe the weight of the first person to have been on top of her leaving it to the jury, by reference to that and other relevant evidence, to draw the inference, if they felt able to draw it, that that first person was Marshall.

82. The submission as to the alleged attempted anal rapes considerably overstates the effect of the evidence. Ms Bell, when asked in examination-in-chief to recount what the complainant had told her during the course of counselling before undergoing hypnosis, said, inter alia, that the complainant had told her that two of the men had attempted "to anally penetrate her", that she had not told anyone else about this because she was embarrassed and that she was telling Ms Bell in confidence. The witness was not asked to elaborate and no cross- examination was directed to this aspect of the matter. The extent, if any, to which her memory of this matter was revived by hypnosis must remain a matter of conjecture. A conclusion that the complainant had no more than a suspicion that two of the appellants had engaged in this conduct is not justified by the evidence.

83. The alleged digital penetration of the complainant was the subject of counts 17 and 18, each of which was the subject of a nolle prosequi. No evidence concerning any such occurrence was led by the Crown at the trial. I consider it to be a matter of no relevance to the determination of the appeals.

84. I consider that the learned trial judge's conclusion that "there was an overall consistency in what she said under hypnosis with what she had previously included in her two statements and statutory declaration" was a conclusion which was entirely justified by the evidence. I do not consider that any other conclusion was reasonably open to him.

85. The final submission made as to the reliability of the complainant's post hypnotic memory was that prior to hypnosis the complainant's memory had not been improving whereas there was an improvement of significance as a result of hypnosis. My earlier summary of the state of the complainant's memory on the occasions of the various interviews ought to have made it plain that each time she was interviewed by police she was able to expand on what she had told them earlier. I have already expressed my reasons for concluding that little was added as the result of hypnosis.

86. It was not appropriate to exclude much if anything of the evidence which the Crown proposed leading from the complainant. None of the evidence which she did give on the trial ought to have been excluded as a matter of discretion. I tend to the view that at least most of the evidence which was excluded should have been allowed to go to the jury. In particular, although for reasons which I have expressed the complainant ought not to have been permitted to say that it was Marshall who was on top of her when she was regaining consciousness, she should have been permitted to give evidence, falling short of such direct identification, which would have left it open to the jury to infer that Marshall was on top of her as she regained consciousness. It follows that the various grounds of appeal which contend that evidence given by the complainant on the trial ought to have been excluded must fail.

87. Marshall and Haywood each complain that the learned trial judge erred in not acceding to the applications made by them for separate trials. A common ground upon which they made their applications was their inability to put to the complainant in cross-examination that Marshall had been the first person to have sexual intercourse with her. After the learned trial judge had ruled at the conclusion of the voir dire hearing that evidence from the complainant concerning an initial act of intercourse with Marshall was inadmissible, he declined to permit counsel to cross-examine the complainant concerning this matter. In doing so his Honour erred. Once it is accepted that the complainant's evidence on this topic was legally admissible, although capable of being excluded as a matter of discretion, the error is clear. A discretion to exclude evidence is a discretion to prevent the Crown from leading inadmissible evidence. In no way can a determination to so exclude evidence affect the right of an accused person to cross-examine a witness. The conclusions I have reached generally in relation to the appropriate disposition of the appeals makes it unnecessary to consider further the exercise of the learned trial judge's discretion in relation to the applications for a separate trial to the extent that they relied on these limitations placed on the right to cross-examine the complainant. Marshall's application did not rely on any basis other than his inability to fully cross-examine the complainant.

88. Haywood made a number of applications for a separate trial on a further basis. At the trial the Crown tendered against Roughley a video recording of an interview of him by police officers, during the course of which he made a number of statements incriminating Haywood, but which of course did not constitute evidence against Haywood. Counsel for Haywood submitted that that interview was "so damaging to ... Haywood's case that, regardless of any direction that Your Honour gives, the danger is, that evidence which is inadmissible against Mr Haywood may affect the jury's verdict on his count" and submitted that that provided a sufficient reason for ordering that Haywood be tried separately.

89. The learned trial judge gave a number of quite clear directions as to the status of the video-recorded interview with Roughley. Prior to that video being shown to the jury another video, of a police interview with Marshall, was shown and his Honour then told the jury that anything Marshall said "about his co-accused is not evidence in the case concerning that co-accused. You're only being shown this as evidence in the case involving Timothy John Marshall." His Honour gave a similar direction immediately before the Roughley video interview was played. During the course of his summing up the learned trial judge reminded the jury of these directions.

90. The considerations relevant to the exercise of the discretion as to whether separate trials ought to be ordered in a case such as the present were recently considered by the High Court in Webb v R [1994] HCA 30; (1994) 122 ALR 41. Toohey J, who as to this aspect expressed the view of the majority of the court, said, at 76:

"The first of these other matters (requiring that the

jury should have been discharged) is the failure of the

trial judge to order separate trials for the

appellants. The justification, indeed the alleged

necessity, for separate trials lies in the fact that in

three records of interview with Webb, which could be

expected to be and were adduced in evidence by the

prosecution, Webb made assertions that Hay had engaged

in a violent and sadistic attack on the deceased. And,

it was said, although the trial judge warned the jury

that this evidence was not admissible against Hay, such

a direction could not cure the overwhelming prejudice

inevitably caused to Hay.

King CJ (in the court below) dealt with this ground by

pointing out that there are 'strong reasons of

principle and policy why persons charged with

committing an offence jointly ought to be tried

together. That is particularly so where each seeks to

cast the blame on the other.' What King CJ referred to

as 'strong reasons of principle and policy' were

discussed by his Honour in R v Collie (1991) 56 SASR

302 at 307-311. I respectfully agree with that

discussion which emphasises that when accused are

charged with committing a crime jointly, prima facie

there should be a joint trial. There are

administrative factors pointing in that direction but,

more importantly, consideration by the same jury at the

same trial is likely to avoid inconsistent verdicts,

particularly when each accused tries to cast the blame

on the other or others. There are of course dangers

for an accused in a joint trial by reason of the

admission of evidence which would not be admitted at

the trial of one accused. That risk must be obviated

by express and careful directions to the jury as to the

use they may make of the evidence so far as it concerns

each accused.

In the end the critical question before an appellate

court in these circumstances is whether, by reason of

the joint trial, there has been a substantial

miscarriage of justice or, put another way, whether

improper prejudice has been created against an

accused."

91. In R v Collie (supra) King CJ adopted the views expressed by the Full Court of the Supreme Court of Victoria in R v Demirok [1976] VicRp 19; (1976) VR 244 at 254 as to the considerations of public interest which normally dictate that persons jointly charged with a crime be tried jointly. Those public interest considerations are as follows:

1 The additional court time and public expense incurred by

the conduct of separate trials.

2 The undesirability of there being inconsistent verdicts,

in particular where the accounts given by accused persons

differ or conflict.

3 The need to achieve finality as soon as possible.

4 The convenience of witnesses.

92. The application of these principles inevitably leads to the conclusion that it was appropriate that the appellants be tried jointly, unless justice dictated that there be separate trials. The convenience, if convenience is the right word, of the complainant was of particular relevance. Complainants in cases of serious sexual crime normally are subjected to particular psychological trauma by the experience of giving evidence, which may be a particularly distressing and intrusive experience. The interests of complainants must be given appropriate weight. They should not be required to give evidence more frequently than the interests of justice necessarily require.

93. The interests of justice did not require that Haywood have a separate trial by reason of the contents of the video recorded interview with Roughley. The jury were warned in clear terms that this material did not constitute evidence which they could take into account in their consideration of the case against Haywood. There is no reason to suppose that the jury did not heed this warning or that they failed to give full effect to it. I observe that Haywood was charged with two counts of vaginal rape as a principal and that he was convicted on one of those counts and acquitted of the other. During the course of the video recorded interview Roughley gave the answer "probably a couple" to a question as to "how many times would Geoff Haywood have had sex with the girl". The acquittal of Haywood on one of these two counts of vaginal rape tends to confirm that the jury heeded the directions given by the learned trial judge as to the use which they could make of the interview with Roughley.

94. I consider that the learned trial judge correctly exercised his discretion against ordering that Haywood have a separate trial on the applications which relied on the contents of the police interview with Roughley.

95. The exclusion of any evidence from the complainant suggesting that Marshall had been the first of the appellants to have had sexual intercourse with her had the effect that her evidence-in-chief concerning events immediately after she regained consciousness, which I have reproduced at pages 22-23, was capable of creating a somewhat misleading impression.

96. The jury could have been pardoned for thinking that by the first part of that evidence the complainant intended to convey that it was Haywood who was on top of her when she regained consciousness in the paddock, although clearly that was not what she intended to convey. During the course of his opening address, counsel for the Crown informed the jury that the evidence would be that the first person to have raped the complainant was Marshall, counsel not having been asked not to open that evidence and not having been given any intimation that it would be objected to. In the light of that opening the jury might have found the evidence of the complainant to be surprising. At the time that she gave this evidence the jury already had brought in directed verdicts of not guilty on count 9 but had not been told the reason for that direction, beyond a general direction usual in such circumstances. During the course of the trial there was other evidence to the effect that Marshall had been the first person to have sexual intercourse with the complainant but on the face of it the jury might well have thought that that evidence was inconsistent with the evidence of the complainant.

97. The cross-examination of the complainant by counsel for Roughley was limited in a number of respects as a result of the ruling that evidence from the complainant to the effect that Marshall had been the first person to have intercourse with her was inadmissible. Having obtained the complaint's agreement to the proposition that she had had considerable difficulty in remembering what had occurred in the paddock, counsel put to her that she had been wrong about things which had occurred in the paddock. Counsel for the Crown objected to that suggestion being put to the complainant and the question was not allowed, apparently upon the basis that the answer might lead to evidence suggesting that at one stage the complainant had said that Marshall was the person who had first had intercourse with her. Later counsel for Roughley asked the complainant whether she believed that Marshall had sexually assaulted her. Again the question was objected to and disallowed, apparently upon the same basis.

98. I have considerable reservations about the proposition that it was appropriate to so limit Roughley's right to cross-examine, even if the learned trial judge's ruling that the relevant evidence of the complainant was inadmissible had been correct. The matters sought to be put to the complainant clearly were capable of going to her credit and probably should have been allowed in any event. However the learned trial judge erred in ruling the evidence to be inadmissible so that it is clear that the questions should have been allowed.

99. It is fundamental to the proper conduct of a criminal trial that an accused person must be given a proper opportunity to test the evidence against him by cross-examination. Indeed it is the duty of counsel for an accused person to properly put his case to the appropriate Crown witnesses (see eg R v Birks (supra). A proper defence by Roughley to the charges contained in counts 10 and 11 entitled him to fully explore the question of prior sexual intercourse between the complainant and Marshall, including any previous statements made by her to investigating police officers and others which might be thought to bear on that question. The circumstances of an act of intercourse with Marshall, if it occurred, were capable of being highly relevant to his defence of these counts, particularly on the question of any belief on his part that the complainant consented to the subsequent acts of intercourse by reason of her conduct in relation to any act of intercourse with Marshall. The ruling which prevented counsel for Roughley from putting these matters to the complainant may well have resulted in injustice.

100. Haywood gave evidence in his own defence. His version of events was that after the car had been parked off the road, the complainant and Marshall left the car together and walked down a lane. He said that he believed that they were intending to go off and engage in an act of intercourse and that a short time later he and Roughley also walked down the lane and came upon the complainant and Marshall in an area of long grass. Haywood said that Marshall was then on top of the complainant and apparently engaged in, or about to engage in, sexual intercourse. He said that he believed that that act of intercourse was consensual and that the complainant would consent to having intercourse with him. Haywood gave evidence of having engaged in a consensual act of intercourse with the complainant after Marshall had removed himself.

101. Whilst counsel for Haywood did not seek to ask any questions of the complainant which sought answers from her on matters as to which the learned trial judge had held that she was "incompetent" to give evidence, in particular that the first act of intercourse had been with Marshall, his Honour had made it quite clear that such questions would not be allowed. The learned trial judge having expressed that clear view, it may be assumed that counsel for Haywood proceeded accordingly. This meant that Haywood's counsel was unable to put the crux of his case concerning count 10 to the complainant. What was observed by Haywood as occurring between Marshall and the complainant had clear relevance to any defence of mistake. Haywood should have been allowed to cross-examine on this issue and it cannot be said that no miscarriage of justice occurred as a result of the learned trial judge not permitting this.

102. Marshall does not complain of having been prevented from cross- examining the complainant but of counsel for Haywood having been prevented from doing so. That submission was made on the basis that Marshall's liability for conviction depended upon whether Haywood was convicted, so that the fact that Haywood was prevented from making a full defence by proper cross-examination of the complainant diminished Marshall's prospects of an acquittal. As I have concluded that Marshall's conviction on count 10 ought to be quashed for other reasons it is not necessary to consider this submission.

103. Each of Marshall and Roughley has asserted that there was no evidence upon which it was open to the jury to convict him on count 10 or alternatively that his conviction on that count is unsafe and unsatisfactory. It is appropriate to consider these submissions together. One of the difficulties with this case is that, in common with other counts, count 10 asserted that the relevant appellants "aided and/or abetted" Haywood in the commission of the crime of rape upon the complainant, without stating any further particulars thereof and without any such particulars having been sought or supplied after the filing of the indictment.

104. The importance of proper pleading is often overlooked in the criminal jurisdiction (see eg the observations of Evatt J in R v Weaver [1931] HCA 23; (1931) 45 CLR 321 at 351). This was a case which cried out for particulars of the matters which the Crown alleged constituted aiding and abetting on the parts of the relevant appellants. The various counts which alleged aiding and abetting should have specified the degree of participation of the alleged aiders and abettors (King v R [1986] HCA 59; (1986) 161 CLR 423 at 436- 437). It is arguable that the lack of particularity in the indictment offended the Criminal Code, ss311(1) and 314, although it does not follow that it was bad (R v Brett (1961) Tas SR 178 at 184). At the very least it would have been desirable if the indictment had contained far more extensive particulars or if the appellants' legal advisers had sought proper particulars. The court, in its inherent jurisdiction, could have ordered that such particulars be supplied (R v Brett (supra) at 188). These observations are not limited to count 10.

105. Insofar as Marshall is concerned, the respondent acknowledged that there was no evidence that he had done anything by way of aiding Haywood and that the case was one of abetting. The respondent submitted that there was evidence upon which it was open to the jury to find that Marshall was present at the time that Haywood effected penetration of the complainant and that there was sufficient evidence for them to find that he intended, by his presence, to encourage Haywood and did encourage Haywood to rape the complainant.

106. It was accepted that the relevant legal principles to be applied are those which were enunciated by this Court in Hutt v R A21/1989. In that case, Underwood J, with whom the other members of the Court agreed, said, at 23-24:

"Criminal liability for the crime charged or its

statutory alternative will attach to an abettor if the

jury is satisfied to the requisite degree that:

1 the crime charged or its alternative was committed.

2 the conduct of the accused in fact encouraged the

commission of that crime.

3 the accused intended that there be such

encouragement.

4 the accused wilfully encouraged the commission of

the crime, that is to say, shared a common criminal

purpose with the principal offender."

107. The case for the respondent was that by his presence whilst Haywood raped the complainant he abetted the commission of the crime. For the proposition that that presence in the circumstances of the case amounted to abetting the respondent relied upon evidence of earlier conduct on behalf of Marshall. Particular conduct upon which reliance was placed included that whilst the complainant travelled in the car with the appellants Haywood and Marshall had been "scruffing" at her breasts; that they had spoken of having anal intercourse with her; and that Marshall had held a knife at the throats of Shea and the complainant whilst Haywood was attempting to pull her from the car, saying that he intended to effect anal intercourse. Whilst that evidence may have been capable of explaining the purpose of Marshall's presence at any later time it does not go to the question of whether it was open to the jury to conclude that Marshall was present at the time that Haywood had intercourse with the complainant. It is that presence upon which the Crown relied. If there was no evidence upon which it was open to the jury to conclude that Marshall was present when Haywood raped the complainant there was no basis for finding that Marshall abetted him in the commission of that crime.

108. Evidence relevant to the question whether Marshall was present at the time that Haywood effected penetration was as follows:

1 The complainant said that when Haywood was on top of her

Roughley and Marshall were standing nearby watching. She

did not purport to recall that Marshall had been standing

watching at the time that Haywood effected penetration.

2 The complainant said that some time after Marshall had

attempted to penetrate her anally he walked away from the

area, she thought for the purpose of vomiting.

3 Haywood gave evidence to the effect that Marshall got off

the complainant, said that he was going off "to have a spew"

and that he, Haywood, then got on and had intercourse with

the complainant.

109. Counsel for the respondent submitted that each of the complainant and Haywood gave evidence of only one occasion upon which Marshall left the area so that he might vomit so that it was open to the jury to conclude that there was only one such occasion, that it was the occasion described by the complainant rather than that described by Haywood and that on that version it was possible to infer that Marshall had been present throughout the act of intercourse on the part of Haywood. I do not consider that the jury would have been justified in reaching a conclusion that Marshall went off to vomit on one occasion only. In the circumstances of this case and having regard to the nature of the relevant event, the mere fact each of two witnesses described such an event, which may have occurred more than once, did not justify the conclusion that they were describing the same event. Even if there was evidence which technically meant that such a conclusion was open, the evidence was so flimsy and inconclusive that the jury could not have been satisfied beyond reasonable doubt to that effect. At the very least such a conclusion would have been unsafe and unsatisfactory. Accepting that the jury could not have reached this conclusion beyond reasonable doubt they could not have been satisfied that Marshall was present at the time that Haywood effected penetration.

110. It does not necessarily follow from this conclusion that the verdict as to Marshall on count 10 was one which was not open on the evidence or, alternatively, that it is one which is unsafe and unsatisfactory. The Criminal Code, s1 defines "sexual intercourse" as including the continuation of the same after penetration. It follows that if Marshall did anything which amounted to abetting whilst Haywood was engaged in sexual intercourse with the complainant by way of encouraging the continuation thereof then, provided that the other legal ingredients of abetting were found to be present, he could have been convicted as an abettor on that basis. However the case was never so put to the jury. In the course of his summing up the learned trial judge did not refer to the extended definition of "sexual intercourse" but merely informed the jury that that expression meant penetration to the least degree of the vagina, anus or mouth by the penis. The jury's consideration of the case against Marshall on count 10 was limited to a consideration of whether they were satisfied to the requisite degree that he had abetted Haywood in his act of penetrating the complainant's vagina with his penis.

111. On the basis that the case on count 10 against Marshall was left to the jury there was no evidence upon which they could have, or at the very least should have, concluded that he was guilty of that crime and his conviction cannot stand. There is no occasion to order a retrial in the circumstances. In particular the respondent should not have the opportunity of seeking a conviction against Marshall upon a basis which was never suggested to the jury at the trial and which was not open to it on the basis of the directions given by the learned trial judge. A verdict of acquittal should be entered.

112. The case against Roughley on count 10 was somewhat different. There was direct evidence in the form of answers given by him during the course of his video recorded interview that he was present at the time that Haywood commenced to have intercourse with the complainant. He said that he saw Marshall on top of the complainant and that when Marshall got off, Haywood then jumped on. The following exchanges then occurred:

"DC: Well what were you doing while that was

happening?

LR: Oh I was standing there but see where I was

standing, I couldn't see whether he had a knife out or

not because he was coverin' right so I wouldn't know.

DC: Right. I know you weren't watching too much, but

when Geoff (Haywood) got on, did he again, she laying

on her back?

LR: Yeah she was laying.

DC: Did he force her legs apart or,

LR: oh that I couldn't tell ya don't know she had 'em

apart I wouldn't

DC: yeah. Could you see where his hands were?

LR: no see I I couldn't tell you if he had a knife out

or,

DC: Right and was he still carrying on the way that

you said he was before?

LR: no no,

DC: Right. Did he say at that time something like,

and this is, either as he's first having sex with her

or, or just before, and did he say something like, 'I

should kill you you slut and dump you in the woods over

the back'?

LR: Yeah I've heard him say it but I wasn't not sure

what the, whereabouts it was.

DR: Right.

LR: I thought that was in the car but,

DC: Well could he have said it more than once perhaps?

LR: well he coulda done yeah.

...

DC: And did you have sex with her?

LR: No. Only she um, masturbated me, just for you

know like, probably a minute.

DC: Right at what stage did that happen?

LR: Oh that was when Tim (Marshall) was oh no when we

were sorta, not long after we sorta got there.

DC: When you first got there?

LR: Yeah.

DC: And that was, what you did that while Tim was

having sex with her?

LR: Yeah.

...

DC: Can you just tell me what happened?

LR: oh well I did that and I just, I just laid down

and she just give me a bit of a wank and anyway they

were swappin' and carryin' on and I just, I got up in

the end and just, you know and then Geoff hopped up and

we walked out."

113. That material entitled the jury to conclude that Roughley was present throughout the act of intercourse with Haywood and immediately before it commenced and that Roughley participated in the sexual activities of the appellants with the complainant. There was evidence from the complainant that whilst she was being raped by Haywood she was screaming and trying to push him off and that Roughley told Haywood to get off because it was his turn. The jury was entitled to have regard to this evidence in conjunction with the evidence of those things which had occurred in and near the car and to conclude that at all times the complainant not only was not a willing participant in the various sexual activities but that she made her unwillingness perfectly plain to all those in the vicinity.

114. A conclusion that Roughley, by his presence, abetted Haywood in raping the complainant at the time of first penetration was one which was reasonably open to the jury. There was clear evidence that Haywood had raped the complainant. By reference to the surrounding circumstances it was open to the jury to conclude that the conduct of Roughley in standing by whilst Haywood was raping the complainant in fact encouraged the commission of that crime.

115. As to the question of whether the jury could have concluded that Roughley intended that his presence and, if the jury found that to have occurred, his participation by having the complainant masturbate him, provided such encouragement, I would adopt the observations made by Macrossan CJ in R v Beck (1990) 1 Qd R 30. Although I have some reservations as to the applicability of what his Honour said as to aiding within the meaning of the Criminal Code, his observations as to aiding may be applied to abetting, and in particular to the question of whether a person is an abettor. His Honour said, at 37:

"Intentional encouragement may come from expressions,

gestures 'or actions intended to signify approval'.

Voluntary and deliberate presence during the commission

of a crime without opposition or real dissent may be

evidence of wilful encouragement or aiding. It seems

that all will depend on a scrutiny of the behaviour of

the alleged aider and the principal offender and on the

existence which might appear of a bond or connection

between the two actors and their actions. The

fortuitous and passive presence of a mere spectator can

be an irrelevance so far as an active offender is

concerned. But, on the other hand, a calculated

presence or a presence from which opportunity is taken

can project positive encouragement and support to a

principal offender. The distinction between a neutral

and a guilty presence of a person at the scene of a

crime will be for the jury to assess. Proof of guilt

of the crime of aiding will not ordinarily be

established by mere presence if no telltale acts are

performed by the alleged aider but the intention behind

and the effect of the presence of the additional person

at the scene may be established by other evidence from

which it is possible to say that a case of intentional

encouragement or support of the principal offender is

made out."

116. The overall picture painted by the evidence was that each of the appellants was minded to have intercourse with the complainant, whether or not she was minded to consent, which intentions were conveyed by them in explicit, crude and offensive terms and that each subjected her to acts of physical violence which could only have been calculated to break down her resistance and have her comply with their demands out of fear. In that setting, the presence of Roughley could have been found by the jury to amount to his abetting the rape by Haywood without more, in that the circumstances could have led them to conclude that all of the necessary elements of abetting, as laid down in Hutt v R (supra) had been established. The verdict as to Roughley on count 10 was open and cannot be described as being unsafe or unsatisfactory.

117. Since I prepared these reasons the High Court has delivered judgment in M v R [1994] HCA 63; (1994) 69 ALJR 83. An application of the principles laid down by the majority in that case (at 86) does not lead me to conclude that Roughley's conviction on count 10 is unsafe or unsatisfactory. I agree with the reasons expressed by Underwood J for rejecting the proposition that the acquittal of all appellants on all counts of rape and attempted rape, other than count 10, meant that the jury rejected the complainant's account of relevant events.

118. It becomes necessary to consider those grounds which assert that the learned trial judge gave inadequate directions as to aiding and abetting as to count 10, insofar as that count concerned Roughley. Before dealing with the actual summing up it is necessary to reproduce relevant portions of the memorandum which the learned trial judge provided to the jury as an aide memoire and to which reference was made during the course of the summing up. The memorandum contained two parts. The first part set forth relevant definitions and the second part summarised the ingredients of the various crimes charged by the indictment.

"(h) 'Aiding or Abetting'

Where a crime is committed the following persons are

deemed to be parties to and to be guilty of the crime

and may be charged with actually committing it:

(i) every person who actually commits the crime;

(ii) every person who does any act for the purpose

of enabling or aiding another person to commit the

crime; and

(iii) every person who abets another person in

committing the crime.

NOTE:

(a) The mere presence of a person at the scene of a

crime is not sufficient to constitute 'abetting'. It

must be proved that he was voluntarily and purposely

there intending to encourage that crime and that his

conduct in fact encouraged the commission of that

crime.

(b) An aider or abettor may be convicted of the same

crime as or a lesser crime than the principal

offender."

120. In relation to count 10 the memorandum contained the following:

"To convict either of the other two accused (ie

Roughley and Marshall) of rape or any other alternative

crime of which the jury has convicted the accused

Haywood, the jury would need to be satisfied beyond

reasonable doubt that the relevant accused aided or

abetted Haywood in the commission of the crime of which

he has been convicted."

121. In the course of his summing up the learned trial judge referred to the definition of aiding and abetting as contained in the memorandum. Having referred to the definition of aiding, and before explaining the meaning of abetting, his Honour said that there were "two examples in the context of the present case which you might think amounted to actually aiding as distinct from abetting" and then proceeded to refer to clear evidence of aiding in relation to counts other than count 10. The learned trial judge then again said that the jury might well think that those instances amounted to aiding as distinct from abetting in that they amounted to giving "actual help to the person in the context of committing the crime".

122. The learned trial judge then directed the jury as to the meaning of abetting in the terms of the memorandum, concluding with a reference to the proposition that an abetter may be convicted of a lesser crime than the principal offender. In this context he referred by way of example to the case of a principal offender being convicted of murder and an abettor to that crime being convicted of manslaughter. With respect to the learned trial judge something considerably more was called for in relation to this aspect of the case. I suspect that without a clear explanation of the legal ingredients of the crimes of murder and manslaughter the example would have been entirely meaningless to the jury. I tend to the view that it was an inappropriate example in any event. This case was complex enough as it was without diverting the attention of the jury by an explanation as to how an abettor to a crime which amounts to murder insofar as the principal offender is concerned might be convicted of manslaughter. The example could not have had the effect of explaining to the jury how an abettor to any of the crimes the subject of the various counts contained in the indictment might be convicted of a lesser crime than the relevant principal offender. No such explanation was ever provided.

123. When the learned trial judge came to directing the jury in relation to count 10 he referred to some of the evidence relevant to that count and to count 11 and then told the jury:

"During the Roughley rape Marshall and Haywood were

standing watching. And you might find that important

evidence in relation to the aiding and abetting aspect

of both of these charges (ie counts 10 and 11). Now,

you remember what I told you about aiding and abetting.

Simply being there isn't enough. But if you're there

as part of a concerted effort to sexually assault

someone, and that as I understand it is what the Crown

were saying was effectively happening, and you're there

when one of your number takes part in a sexual assault,

that could very well be abetting on your part. What

you are prepared to infer was their part in these

offences no doubt depends to a large measure on what

you're prepared to infer was the group involvement in

the events both before and during and perhaps even the

events afterwards might throw some light on what their

individual intents were at these particular times.

And, of course, you'd be entitled to look at the

overall circumstances and not just to isolate it and

say, well at the very time intercourse was taking place

they were just standing there - they weren't urging him

on, they weren't doing this or doing that. You'd be

entitled to look at it in the overall context of the

evening's events as they unfolded. So what view you

take of that then is a matter for you in respect of

aiding and abetting no doubt."

124. Later in the course of the summing up the learned trial judge returned to the ingredients of each crime as summarised in the memorandum, but only insofar as they concerned the principal offender, Haywood. No further reference was made to the position insofar as it concerned the alleged aiders and abettors. The portions of the summing up and memorandum to which I have referred constitute the totality of the directions given as to aiding and abetting, either generally or by particular reference to count 10.

125. It was left open to the jury to find that Roughley had aided Haywood in his rape of the complainant. There was no evidence to this effect and the respondent has conceded this. Counsel for the respondent submitted that at least by implication the learned trial judge told the jury that there was no such evidence when he referred to the two "examples" of aiding disclosed by the evidence, neither of which related to count 10. However the giving of examples is not to be taken as an exhaustive list of the instances of possible aiding appearing from the evidence. In fact the contrary is suggested. By specifically inviting the jury to consider the question of aiding in the context of Roughley's conduct relevant to count 10 the jury could only have understood that there was evidence fit for their consideration with a view to determining whether some conduct on the part of Roughley amounted to aiding Haywood.

126. In my view the facts of this case were such that they required that the jury be given clear directions, insofar as the case against Roughley on count 10 was concerned, to the following effect:

1 That there was no evidence upon which the jury could find

that Roughley aided Haywood in raping the complainant.

2 That it was for his Honour to tell the jury what conduct

on the part of Roughley disclosed by the evidence was

capable of amounting to abetting but that it was for the

jury to determine whether in fact it occurred and, if so,

whether it amounted to abetting.

3 Identifying that conduct on the part of Roughley

disclosed by the evidence which was capable of amounting to

abetting specified criminal conduct on the part of another

specified person.

127. I do not consider that the summing up sufficiently instructed the jury in these matters. As to aiding, the jury erroneously were left to consider it. As to abetting the jury were given no sufficient instruction as to how they might apply the law to the evidence. Roughley makes other complaints of the summing up on the question of aiding and abetting in relation to count 10 and I proceed to deal with those.

128. Roughley has submitted that the directions given to the jury did not conform to the law as laid down in Hutt v R (supra) and in particular that the learned trial judge did not direct the jury that, before they could convict Roughley on count 10, they were required to be satisfied that he had wilfully encouraged the commission of the crime of rape by Haywood, that is to say, that he shared a common criminal purpose with Haywood.

129. The third of the relevant ingredients as laid down in Hutt v R (supra) is concerned only with the requirement that there be an actual mental intention to render assistance whilst the fourth is concerned with the requirement that the actual act of encouragement is wilful (R v Jones (1977) 65 Cr App R 250 at 252, see also Smith v R A4/1979, R v Allan (1965) 1 QB 130; R v Clarkson (1971) 1 WLR 402). The learned trial judge gave no direction in the terms of that fourth ingredient although it may be said that in the circumstances of this case a finding that the first three ingredients had been made out would inevitably have led to a conclusion as to the fourth ingredient. As a result, although I consider the complaint to be well founded, I doubt whether standing alone it could be said to have resulted in injustice.

130. I suspect that the learned trial judge was led into error by substantially repeating, in the course of his directions, the observations made by Hawkins J in R v Coney (1882) 8 QBD 534 at 557. However those observations were directed to a state of affairs from which a jury might conclude that there had been abetting, rather than purporting to state all the ingredients necessary to constitute abetting. His Lordship said at 558:

"Non-interference to prevent a crime is not itself a

crime. But the fact that a person was voluntarily and

purposely present witnessing the commission of a crime,

and offered no opposition to it, though he might

reasonably be expected to prevent and had the power so

to do, or at least to express his dissent, might under

some circumstances, afford cogent evidence upon which a

jury would be justified in finding that he wilfully

encouraged and so aided and abetted. But it would be

purely a question for the jury whether he did so or

not."

131. Roughley complained of a failure on the part of the learned trial judge to give a direction that if the absence of an honest and reasonable but mistaken belief on the part of Haywood that the complainant was consenting to having intercourse with him was not negatived then he was entitled to be acquitted. As a matter of law Roughley was entitled to be acquitted in the circumstances predicated. The respondent has submitted that no such direction was required because a direction was given that if the jury acquitted Haywood then Roughley was to be acquitted. No such direction was given. The direction relied upon by the respondent was that given in relation to count 4 when his Honour said that if "you find he (ie Haywood) didn't commit the crime, well, of course, Marshall can't aid and abet something which isn't a crime. That'd be the end of it." I do not consider that it is capable of being a sufficient general direction or a sufficient direction as to count 10. I observe that in any event the reference in this direction to finding that Haywood had not committed the crime could have tended to mistakenly convey that what was required was some positive state of satisfaction that he had not committed the crime rather than to the absence of a state of satisfaction that he had committed it.

132. It is no longer the law that where the principal offender is acquitted an alleged aider or abetter is entitled to be acquitted as a matter of course. That rule had its origin in the rule that where two persons were jointly indicted on a single count of conspiracy between themselves and no other the acquittal of one necessitated the acquittal of the other. That latter rule no longer forms part of the law of Australia (R v Darby [1982] HCA 32; (1981-1982) 148 CLR 668). In that case Gibbs CJ, Aickin, Wilson and Brennan JJ said, at 671:

"The agreement of minds is an essential element of the

offence of conspiracy. It is therefore understandable

that in times when the grounds for challenging a

conviction were limited to errors which appeared on the

face of the record of proceedings the courts were

prepared to find a miscarriage of justice based on

apparent inconsistency where that record showed that

one conspirator had been convicted while his alleged

co-conspirator had been acquitted. In reality, the

verdicts may not have been inconsistent at all: the

conviction of one may have proceeded upon evidence

admissible against that one which was very much

stronger than the evidence admissible against the other

or others."

133. The same principle is to be applied in the case of a principal and accessory jointly charged. In King v R (supra) Dawson J, in expressing views which were adopted by the majority of the court, said at 433-434:

"Even where two persons are tried jointly upon the one

charge as participants in the same degree, it does not

inevitably follow that both must be convicted or both

must be acquitted: Reg v Darby (supra). An indictment

charging two persons on the one count is both joint and

several: Hale's Pleas of the Crown, New 3rd ed (1800),

vol I, p 46; Hawkins' Pleas of the Crown, 8th ed

(1824), vol II, p 331, s 89; Reg v Fenwick (1953) 54 SR

(NSW) 147, at p 152; Reg v McConnell (1977) 1 NSWLR

714, at p 720-721; Reg v Merriman (1973) AC 584. The

evidence may be sufficient to prove the case against

one accused beyond reasonable doubt, but be

insufficient to prove the case against the other. In

that event, the conviction of the one and the acquittal

of the other involves no inconsistency. Of course,

where there is no material distinction in the evidence

admissible against each accused to establish an element

to be proved against both, different verdicts may be

inconsistent."

134. Where there is no material difference between the evidence admissible against two accused persons a direction that an acquittal of the principal offender must lead to the acquittal of the alleged aider or abettor is unobjectionable. In such circumstances it is an appropriate direction, not because of any technical rule, but because it is appropriate in the circumstances of the case. In the present case it was appropriate to tell the jury that if they acquitted Haywood on count 10 then the acquittal of Roughley on that count should follow. With the exception of the video recorded interview in which Roughley participated, the evidence on count 10 substantially was admissible against both Haywood and Roughley. Nothing said by Roughley during the course of that interview could reasonably have led the jury to conclude that they were satisfied of the guilt of Roughley if they had concluded that they were not satisfied of the guilt of Haywood. Conversely, if the jury had concluded that the Crown had negatived the existence of an honest and reasonable but mistaken belief of the part of Haywood that the complainant consented to having intercourse with him there was no reasonable basis upon which the jury could have failed to have reached that state of satisfaction in the case against Roughley.

135. The direction which Roughley submitted ought to have been given was unnecessary if the jury were properly instructed as to what the Crown had to prove before Haywood could be convicted on count 10 and were instructed that the acquittal of Haywood would require the acquittal of Roughley. The former direction was given but the latter was not given, although no injustice can be said to flow from it because Haywood was convicted. Roughley does not complain of any failure on the part of the learned trial judge to direct the jury's attention to the requirement that in considering, in the case against him, whether the Crown had negatived the absence of an honest and reasonable but mistaken belief on the part of Haywood that the complainant consented to intercourse, it was necessary to have regard to the whole of the evidence in the case against Roughley, not all of which was admissible against Haywood. I assume that no such complaint was made because the additional evidence in the case against Roughley could not reasonably have led the jury to a conclusion other than that reached in the case against Haywood, all of which was admissible against Roughley.

136. Roughley submitted that the learned trial judge should have given a direction that if the jury was not satisfied that he did not have a belief that the complainant consented to having intercourse with Haywood or, if he did have it, that it was neither honest nor reasonable, that he then was entitled to be acquitted. I do not consider that such a direction was required. Before Roughley could be convicted of rape it was necessary that the Crown establish by way of evidence admissible against him that Haywood committed the crime of rape, that Roughley was present when it was committed and that presence amounted to an abetting of the commission of that crime in that there were present the elements referred to in R v Hutt (supra). A state of satisfaction on the part of the jury as to all those matters necessarily negated the possibility of the existence of a state of mind on the part of Roughley that the complainant was consenting to intercourse with Haywood. For the jury to have been given this further direction would have been unnecessarily confusing in a case which was already complex and which required the jury to have regard to many difficult directions in law.

137. Roughley complained of a direction given by the learned trial judge which, he submitted, authorised the jury to take into account his state of mind at a time subsequent to the complete commission of the crime the subject of count 10 in assessing whether or not they were satisfied of his guilt on that count. The direction complained of was given during the course of his Honour directing the jury as to the elements of aiding and abetting in relation to counts 10 and 11. His Honour said:

"What you are prepared to infer was their part in these

offences no doubt depends to a large measure on what

you're prepared to infer was the group involvement in

the events both before and during and perhaps even the

events afterwards might throw some light on what their

individual intents were at these particular times."

138. I do not consider that the complaint made about this direction is well founded. What the learned trial judge told the jury was that they were entitled to look at conduct of the appellants after the commission of the crimes as that conduct, not their then states of mind, might assist them in coming to a conclusion as to an earlier state of mind existing at a time when, on the Crown case, an act of abetting occurred. Such a direction is unexceptional. In many cases the conduct of an actor may throw light on the state of mind of that actor on an occasion preceding that conduct.

139. Roughley complained that the learned trial judge did not properly direct the jury in the way required by Hutt v R (supra) in two particular respects, in that he did not direct the jury that in order to convict Roughley they needed to be satisfied that he, by his presence, intended to encourage Haywood to commit the crime of rape upon the complainant and/or to render assistance if appropriate and that his presence in fact so encouraged Haywood. I have dealt with the required directions earlier and have concluded that the learned trial judge did not give the full directions which were required. I am far from persuaded that this particular complaint is made out but having regard to my earlier conclusions do not need to give further consideration to it.

140. Finally, Roughley complained of the absence of a direction that the time at which the conduct of Roughley was to be considered with a view to determining whether abetting had been made out was the moment when Haywood effected penetration. As a matter of law such a direction would have been wrong. I have expressed my reasons for coming to this conclusion in considering the case on count 10 against Marshall. In fact, by instructing the jury as to the meaning of sexual intercourse in terms which did not refer to the extended definition, but which were in accord with the law as laid down in Richardson v R (1980) Tas R 178 without regard to the subsequent amendment of the definition of "sexual intercourse" contained in the Criminal Code, s1, the jury could not but have been left with the impression that, before it could be said that abetting had been made out against Roughley, it needed to be shown that he abetted the non-consensual act of penetration. The directions which were given were unduly favourable to Roughley.

141. I conclude that there were a number of mis-directions and material non-directions insofar as the case against Roughley on count 10 was concerned. They are of such a nature that taken collectively it cannot be said that no injustice has been caused so that it is not appropriate to apply the proviso.

142. The final grounds to be considered raise complaints by Haywood and Marshall as to the admission of certain evidence against them which, it was submitted, indicated that they were of bad character in that they had been imprisoned and had committed the crime of sodomy. That evidence was in the form of evidence-in-chief from the complainant and cross-examination of Haywood. The relevant evidence of the complainant was as follows:

"You're saying umm, before the break, that you were

driving along West Mooreville Road and the vehicle

eventually stopped, but shortly before it stopped,

there was a conversation - occurred in the car. Who

was the conversation between? ... Haywood and Marshall.

And, can you recall what was being said? ... Something

about how when they'd been in gaol before something

about getting it up the arse and doing the same to me

and making it hurt.

Thank you, words along those lines ... Yes.

And, was it just one of them saying it, or - ... No, it

was both of them."

143. The cross-examination of Haywood proceeded as follows:

"Whilst you were driving down West Mooreville Road,

before you stopped - I suggest that you said - you and

Mr Marshall were saying - how you had been to gaol -

how you got it up the arse in gaol, and you wanted to

do it to the complainant? ... No.

Because that's what all women like? ... No.

Words to that effect? ... No way.

Well have you been to gaol? ... Yes I've been in gaol,

but no-one's touched me up the arse.

So you are saying that you have never had anal sex in

gaol? ... Yeah, fuckin' oath I am.

Have a look at this document please. Just read it

please. Can I have the document back please. You

still say you haven't participated in anal intercourse

in gaol? ... Yes."

144. Rather surprisingly counsel for the Crown did not seek to put similar propositions to Marshall when he gave evidence. Evidence of threats to penetrate the complainant anally undoubtedly was relevant having regard to counts 15 and 16 which alleged attempted anal rape. In directing the jury as to the evidence suggesting that Marshall and Haywood had been in prison and there had engaged in, or been subjected to, anal sexual intercourse the learned trial judge told them that the evidence was relevant to the threat alleged to have been made to the complainant but that they were not to use it as evidence of guilt on the basis of prior bad character.

145. The evidence of the complainant was evidence of assertions made to her by both Marshall and Haywood that they had been to prison and that whilst in prison they had at least been subjected to sodomy. Those assertions stood quite separate from the alleged threats to sodomise the complainant and to do so in such a way that it would be painful. There was no proper basis to admit this evidence. Sometimes the facts concerning a crime may be such that it is impossible to avoid disclosing that the accused person has been to prison (eg R v Evans (No2) [1976] VicRp 53; (1976) VR 523; R v Straffen (1952) 2 QB 911) but this is not such a case. The Crown could have led from the complainant evidence to the effect that Marshall and Haywood had threatened to sodomise her without any mention of prison or of their own prior experiences and without detracting from that evidence. The evidence of threats was relevant directly to those counts which charged attempted anal rape and may also have been relevant to the issue of consent on all counts of rape and attempted rape. The other evidence amounted to no more than gratuitous and irrelevant material which suggested that Marshall and Haywood were persons of previous bad character. Certainly the evidence of the complainant would not have justified the conclusion that any reference made by these appellants to having been in gaol in itself operated, or was intended to operate, as any form of threat. This evidence of the complainant ought not to have been permitted to go to the jury and the learned trial judge erred in admitting it.

146. The questions asked of Haywood in cross-examination, and in particular the question whether he had been in prison, were calculated to suggest that he was a person of bad character and had committed the crime of sodomy. Such questions could only be asked if expressly permitted by the Evidence Act 1910, s85(10). It follows from the reasons which I have expressed as to the evidence led from the complainant that this evidence did not fall within par(a) of that subsection. There is no basis for suggesting that it was authorised by any of the other paragraphs of s85(10).

147. Despite the warning given by the learned trial judge as to the use of this evidence, it remains the position that neither Haywood nor Marshall received a trial according to law because there was admitted evidence suggesting that they were persons of bad character when there was no basis for admitting that evidence. It is fundamental that an accused person is entitled to receive a trial according to law and in particular to be tried upon legally admissible evidence. Where there has been a failure to afford an accused person that right by reason of having been portrayed to the jury as a person of bad character then prima facie a verdict of guilty should not stand. A mere warning not to use the evidence in an impermissible way, when there is no permissible way in which to use it, is insufficient to remove the risk of injustice. The serious nature of the wrongful admission of such evidence was emphasised in Bohdal v R A8/1987.

148. In the light of my reasons I have concluded that the appeals should be disposed of as follows:

Roughley

1 That his appeal be allowed.

2 That his conviction and sentence on count 10 be quashed.

3 That he be re-tried on count 10.

Marshall

1 That his appeal be allowed.

2 That his convictions and sentence on counts 6 and 10 be

quashed.

3 That he be re-tried on count 6.

4 That a verdict of acquittal be entered on count 10.

Haywood

1 That his appeal be allowed.

2 That his convictions and sentence on counts 4, 6, 10 and 19 be

3 That he be retried on counts 4, 6, 10 and 19.