Marlow v R [2000] TASSC 103

Donnini v R [1972] HCA 71; (1972) 128 CLR 114; BRS v R [1997] HCA 47; (1997) 191 CLR 275; Gipp v R (1998) 194 CLR 106, referred to.

Judgment Number: [2000] TASSC 103

1 The facts upon which this appeal is based are set out in the Reasons for Judgment prepared by Underwood J and I gratefully adopt his statement of them.

2 Clearly the reference made by the complainant to what she said she had heard about the appellant was relevant to the challenged credibility of the reasons for her decision in December 1998 to withdraw the charges. Counsel for the appellant concedes that this is so and that it was accordingly admissible. His contention is, however, that the slur upon his client's character implicit in the complainant's evidence required a direction from the learned trial judge to ensure that the jury did not make impermissible use of that evidence in determining guilt. Whether it amounted to a statement of rumour or not, the complainant's evidence "I had heard that he was not a very nice person in that sort of area and that he already would have a friend of his to basically come through with a rifle and kill us all basically" (or the possible variations which a study of the audiotape seems to permit) could have left the jury in no doubt that the complainant was asserting that she had heard that the appellant was a violent man who had arranged, or who might well be able to arrange, for a violent associate to murder her and her children should she persist with her claim that he had raped her, and in December 1998, she had sufficient faith in the accuracy of those assertions to attempt to withdraw her complaint. As such, it amounted, in my view, to a clear suggestion that those assertions might well be true and therefore had a strong tendency to reflect adversely upon his character and his credibility as a witness.

3 As my brother Underwood J points out, where evidence of criminal or reprehensible conduct not the subject of a charge is admissible as relevant only to a subsidiary issue that arises at trial, it is (normally) incumbent upon a trial judge to direct the jury as to the limited use to which that evidence may be put. He cites the dictum of Barwick CJ in Donnini v R [1972] HCA 71; (1972) 128 CLR 114 at 123. In that passage, Barwick CJ states that "evidence of bad character ... is susceptible of use by the jury as indicating a propensity for criminal behaviour" and "there is a high degree of possibility that a juryman will be prone to reason towards guilt by the use of the fact of prior conviction as indicative of a disposition to crime on the part of the accused". Donnini had sought to establish his good character as a matter going to the likelihood of his innocence and it was in that context that evidence of prior convictions became admissible, not, of course, to prove the reverse, but to deny him the benefit of a false claim to good character which could otherwise have been used by the jury as a matter pointing towards innocence. Nevertheless, the principle remains the same even if the evidence is rendered admissible for other reasons. Evidence suggestive of bad character, whether demonstrated by prior convictions or some other evidence, is susceptible of impermissible use as indicating a criminal propensity which makes it more likely that an accused person is guilty of the crime charged.

4 In BRS v R [1997] HCA 47; (1997) 191 CLR 275, evidence of homosexual acts on another youth which were of a similar character to those alleged to have been committed upon the complainant, was admissible as corroborating some of the detail of the complainant's version of events, but that as there was a real risk that the jury would impermissibly rely on it as showing that the accused was the sort of person who had a propensity to commit the conduct the subject of the charges and would use it as evidence of guilt, the absence of a direction as to its proper use denied him a fair trial. That is a stronger case than the present because here a propensity to violence generally is less closely linked with the particular behaviour the subject of the charge; but even so, there is a direct link in the sense that the acts of attempted and completed rape, together with the third count of assault, all intrinsically involved a degree of force and, in the circumstances of this case, also involved a not inconsiderable degree of actual physical violence.

5 That considerable care is required in explaining the purpose for which evidence can be used in situations where an impermissible use of it might be made by the jury, is demonstrated by the law in respect of evidence of recent complaint in sexual cases. In Jones v R [1997] HCA 12; (1997) 143 ALR 52, the High Court unequivocally reiterated the necessity for a direction as to the limited use to be made of such evidence, saying that unless this were done "there was every likelihood the jury might treat that evidence as confirmatory proof of the facts which the Crown alleged" (at 54).

6 In the present case, it is true that the principal issue was whether an absence of consent to penetration had been established beyond reasonable doubt. An assessment of the evidence by the jury required an evaluation of the credit of both the complainant and the appellant, together with the other witnesses whose evidence was in dispute. An assertion by the complainant that she had heard the appellant was the type of person who would use a violent associate to do her and her children serious harm (death, no less) was likely to impact upon his credibility, notwithstanding that it was legitimately introduced to rebut, by showing her true motivation, a challenge to her credibility in the form of a suggestion that she sought to withdraw her complaint because it was not genuine. As it happened, the appellant called a witness to support his claim that the complainant and he had previously enjoyed an intimate relationship which she had denied. This witness fixed the date upon which he claimed to have seen evidence of this relationship by reference to a function which he had attended "at the Outlaws' club room the night before, a game night, a feast". He was asked in cross-examination about his association with the Outlaw Motor Cycle Club, the frequency of his visits there and whether he agreed that the Outlaws had a code about sticking together. Thus the question of credibility went beyond the central issue of consent, but embraced the reliability of the evidence of one of the appellant's associates. Without a direction from the learned trial judge as to the proper use of the complainant's evidence in re-examination, I cannot confidently say that there was no appreciable risk that the jury would not have reasoned that the appellant was a person with a propensity to violent crime who associated with individuals of similar type, that his evidence and that of the man he called as a witness was not therefore worthy of belief and that, because of his propensity, it was likely he committed these crimes. The evidence the subject of the non-direction was admissible only as to the complainant's motivation in withdrawing her complaint. It could not legitimately be used either as tending to establish guilt or as adversely impacting upon the credibility of the accused or his witnesses. In my opinion, it may well have been used by the jury, or some of them, for either or both purposes and in those circumstances a direction ought to have been given. The failure to do so deprived the appellant of a fair trial. I would allow the appeal, quash the conviction and order a new trial.

7 The appellant has appealed against his conviction on one count of attempted rape, one count of assault and one count of rape. At the trial it was common ground that on the evening of 26 November 1998, the appellant visited the complainant at her home where she lived with her two children. It was the Crown case that all three crimes were committed there during the late hours of that evening and the early hours of the following morning.

8 The appellant and the complainant became friends after being introduced to one another by a mutual friend. Prior to the evening in question, the appellant had visited the complainant on a few occasions and spoken to her on the telephone a number of times. It was the appellant's case at trial that he had stayed overnight at the complainant's home on two occasions prior to 26 November 1998 and that on the first, but not the second, consensual sexual intercourse had taken place. The complainant denied that the appellant had ever stayed at her house for the night and denied that there had been any sexual congress between them at all prior to 26 November 1998.

9 On the afternoon of 26 November 1998, the appellant called at the complainant's house but did not stay long. He left after making an arrangement with the complainant to return that evening for a few drinks and a chat. The appellant returned in accordance with the arrangement and he and the complainant had a few drinks together. By this time, the complainant's two sons, then aged 10 and 3, were asleep in their beds. There was a dispute as to whether the complainant became affected by alcohol. The complainant said that during the course of the evening the appellant started paying her compliments and made it clear to her that he wanted a physical relationship, but she rebuffed him saying that she only wanted them to be friends.

10 According to the complainant, late in the evening, the appellant grabbed her in a forceful hug and tried to kiss her. The complainant said that she screamed and called out to the appellant to stop, but he persisted and forced her onto the floor, knocking over a pot plant and stand as he did so. She said that the accused pulled her jeans and underpants part way down. She said that she fought against, and kicked at the appellant, crying and screaming for him to stop. The complainant described the appellant as leaning over her, trying to put his penis in her vagina. She said that she managed to get away from him, but as she was heading into the next room, he seized her from behind by the shoulders and banged her head on the side of a door frame. The complainant said that the appellant then forced her to go into the bedroom of her youngest son. His bed was empty. She said that the appellant pushed her down onto the bed and there raped her. She said that during the commission of this crime she was struggling and crying and telling the appellant to stop.

11 The appellant's account was diametrically opposed to that given by the complainant. In his evidence, the appellant said that after he had been at the complainant's home for a little while and they had had some drinks, she permitted him to massage her back, neck and shoulders and touch her on the breast. He said that she was affected by alcohol. He said that the two of them then began to dance in the lounge room, but because the complainant was unsteady on her feet a pot plant was knocked over. The appellant said that the two of them then lay down on the floor and were about to have consensual intercourse when the complainant's elder son came into the room and saw them. The appellant said that the complainant told her son to go back to his room and that after he had done so, the appellant and the complainant had another drink and then retired to her youngest son's bedroom where consensual sexual intercourse took place. He denied that he assaulted her.

12 There was strong corroboration of the complainant's account. Evidence was given by her elder son that he was woken up by his mother's screams. He said that he then heard a crash and got out of bed and went into the lounge room. He described seeing his mother lying on the floor with her jeans pulled down and the appellant leaning over her. He said his mother told the appellant in a "crying voice" to stop and get off her. The boy said that the appellant's trousers were down. He said that he told the appellant to stop but he did not do so. The complainant's son said that he then went to his brother's room, took him out of bed and put him into his own bed. He described how he lay in bed trying to block out the sound of his mother's screams. He said that he then heard another bang and got out of bed again. He went down the passage way and saw the appellant banging his mother's head "into the wall". He said he went back to bed but a little later got out again and went into his brother's room where he saw the accused having sexual intercourse with his mother. He said that she was telling the appellant to stop "in a crying voice".

13 In addition to the evidence given by the complainant's son, there was evidence of her distress the following morning, evidence of her hair coming out and medical evidence of bruises on various parts of her body, including the inner aspect of her thighs.

14 During the complainant's cross-examination, counsel for the appellant put squarely to the complainant on many occasions that there had been consensual sex in the lounge room and in her younger son's bed, and that the appellant had not assaulted her by banging her head against the door jamb. Counsel put to the complainant that she had made up her account because she was embarrassed about her elder son seeing her engaged in sexual congress and/or because she wanted to get compensation, pursuant to the provisions of the Criminal Injuries Compensation Act 1976. In an attempt to further support the proposition that the complainant had made up her account, counsel for the appellant put to her that on I December 1998 (before the appellant was charged) she telephoned a detective and told him that she did not want to proceed with the case against the appellant. The complainant agreed that she did this and added that she was "scared". In re-examination, Crown counsel took this up and asked the complainant of what it was she was scared when she telephoned the police officer and told him that she did not want to proceed with the complaint. The transcript records the following:

"MISS GEASON: (Resuming) Why were you scared Miss [S]? ... I was scared that if I went through with like going to court and everything what might happen to my children and then-

What did you think might happen to your children? ... In some cases like this, I didn't want them to die, you know, I was 'just scared for their lives.

And what had made you scared? ... Just that I had heard that he was not a very nice person in that sort of area and that he already would have a friend of his to basically come through with a rifle and kill us all basically."

15 Prior to making submissions on the hearing of this appeal, counsel listened to the tape recording of the complainant's last answer. It appears to be common ground that the transcript of that last answer may be partly corrupt and that the complainant may have said, "... and that therefore he would have ready a friend ...", or "... and that therefore he would have a friend ... ".

16 Whatever were the precise words of the complainant, the appellant complains that her answer constituted evidence of prior bad conduct, not the subject of a charge, and therefore, although admissible on the issue of her credit raised by the cross-examination, required a direction from the trial judge warning the jury not to make any other, impermissible use of that evidence. No such direction was given. The failure to give that direction is the single ground of appeal against conviction.

17 The general proposition of law is that where evidence of criminal or reprehensible conduct, not the subject of a charge, is admissible as relevant only to a subsidiary issue that arises at trial, it is incumbent upon a trial judge to direct the jury as to the limited use to which that evidence may be put. See Gipp v R (1998) 194 CLR 106 at I12; B R S v R [1997] HCA 47; (1997) 191 CLR 275 at 293 - 294_; Donnini_ v R [1972] HCA 71; (1972) 128 CLR 114 at 123. Thus, where evidence of bad character is properly admitted as relevant to the issue of the accused's character, a direction is called for to make sure that no miscarriage of justice occurs by reason of the jury using that evidence as positive proof of the accused's guilt.

18 Even if the defence requests that no direction be given, or fails to ask for the direction, the trial judge is obliged to give it if its absence is likely to cause a miscarriage of justice. See B R S v R (supra) at 302 and 306; Bromley v R [1986] HCA 49; (1986) 161 CLR 315 at 325.

19 The need for the direction is explained in the following terms by Barwick CJ in Donnini (supra) at 123:

"But evidence of bad character, particularly where it serves no other purpose in a case than the exposure of that character where the accused's credit is involved, is susceptible of use by a jury as indicating a propensity for criminal behaviour. Where the ground for granting the permission under s399(e)(ii) is an attempt by the accused to establish his own good character as a matter to be considered on the question of his guilt or innocence, the purpose of the section is to deny the accused the benefit of a false claim to good character. It does not intend to place bad character before the jury as a fact upon which they may conclude the guilt or innocence of the accused. It seems to me, however, that there is a high degree of possibility that a juryman will be prone to reason towards guilt by the use of the fact of prior conviction as indicative of a disposition to crime on the part of the accused. To so use the fact of prior conviction is to cut across a deeply entrenched policy of the law. Therefore, the not unnatural tendency of the juryman and the importance of that policy seem to me to require that the trial judge, when evidence of prior conviction is properly before the jury for the sole purpose of combating a suggestion of good character or to weaken or destroy an accused's credibility, must assist the jury by expressly and with emphasis telling them that they may not use the fact of prior conviction as tending to the guilt of the accused." [Emphasis added]

20 This proposition was supported in B v R [1992] HCA 68; (1992) 175 CLR 599 at 608, although in that case the evidence in question was admissible as relevant to the issue of guilt or innocence, as well as to the issue raised by the accused.

21 As the passage cited from Donnini above makes it clear, the need for a direction only arises if there is a real risk that a juror may use the evidence, admitted for a limited purpose, in an impermissible way relevantly to this case, as tending to prove the commission of one or more of the elements of the crimes charged. Gaudron J expressed the matter in the following way in B R S v R (supra) at 302:

"As already indicated, there was a real risk that the jury might use W's evidence as positive proof of the appellant's guilt. In my view, that risk far outweighed any advantage that might have been obtained by the trial judge's failure to give directions as to the use which that evidence could properly be put. Indeed so serious was that risk that, in my view, the trial judge should have instructed the jury with respect to its use notwithstanding the limited directions sought by defence counsel.

"So a critical question in the present case is whether there is a real chance that the omission to give directions concerning W's evidence may have been the factor that resulted in the appellant's conviction. That question depends on whether the jury might have used W's evidence to conclude that the appellant had homosexual tendencies that made it more probable than not that he had oral and anal intercourse with the complainant."

Thus, in this appeal the issue is whether there is a real chance that the omission to give any direction concerning the use to which the complainant's evidence, given in re-examination and set out above, may have been a factor that resulted in the appellant's conviction. If the answer to that question is in the affirmative, then an error of law occurred. It follows from the nature of the error that if established, the provisions of the Criminal Code, s402(2) have no room for operation for it could not be said that an appellant had not thereby lost the chance of an acquittal which was fairly open to him; per Fullagar J in Mraz v R [1955] HCA 59; (1955) 93 CLR 493 at 514.

23 At the appellant's trial the single issue for the jury's consideration on the counts of rape and attempted rape was whether it was satisfied to the requisite degree that the complainant had not consented to the undisputed sexual connection or attempted connection. Although the elements of the count of assault were of course, different, the resolution of that count depended very much upon the resolution of what I might call the primary counts. The issue was, as the learned trial judge put it to the jury, were they satisfied that the complainant was a substantially truthful and accurate witness? Thus, the considerations at the appellant's trial were quite different from those before the trial court in B R S, B, and Gipp where the principal issue was whether there was any sexual contact at all, and in Donnini where the principal issue was whether the accused was the person who had committed the crimes charged. In their closing addresses, both counsel referred to the evidence of the complainant that she had telephoned a police officer and said that she did not want to proceed with the trial. For the appellant, it was argued that this evidence tended to prove the falsity of her account and that her explanation for making the call was fanciful. For the Crown, it was contended that her telephone call to the police did not undermine her credit because of the reason she gave for making it. The learned trial judge referred to this evidence in his summary of the evidence to the jury by saying:

"She agreed that she did phone the police on about 1 December wanting to, not to proceed, she said she was scared for the children and herself".

24 The complainant's answer - "I had heard that he was not a very nice person in that sort of area and that he had already would have a friend of his to basically come through with a rifle and kill us all basically" - was a statement of rumour rather than an assertion of fact. In the context of the questioning, it constituted a description of what was in the mind of the complainant at the time she telephoned the police and said that she did not wish to proceed. It would not have been understood by the jury to have been an assertion of fact that the accused was a person who had in the past been guilty of criminal or reprehensible conduct. The answer was relevant to the issue of the credit of the complainant and clearly would have been considered by the jury as relevant to that issue. It was a small point in the context of the trial having regard to the corroborative evidence to which I have referred, and certainly would not have been determinative of the issue of the complainant's credit. Furthermore, apprehension of harm by a complainant either to her or her children at the hands of the person she has accused of sexual crime is a not unnatural reaction whether or not that apprehension is well founded.

25 As the determinative issue for the jury was consent, and whether the complainant was, in substance, a witness of truth and accuracy, it cannot be said that the absence of a direction has given rise to a real chance that the jury may have impermissibly reasoned from that single answer that the accused is a person who has engaged in prior criminal or reprehensible conduct and therefore it is likely that the complainant did not consent to the admitted sexual activity. I would dismiss the appeal.

26 I have had the advantage of reading the reasons for judgment prepared by Underwood J and agree with his reasons for dismissing the appeal. A further reason for my sharing his Honour's view that there is no real chance that the jury may have impermissibly used the evidence in contention is the course of conduct of the trial.

27 The evidence in contention was proffered by the complainant in response to questioning about why she had told a detective she did not want to proceed with the appellant's prosecution. When responding, she did not speak with sufficient clarity for her answer to be clearly recorded on the audiotape of the proceedings. As transcribed from the audiotape, her answer to the question "And what had made you scared?" was:

"Just that I had heard that he was not a very nice person in that sort of area and that he already would have a friend of his to basically come through with a rifle and kill us all basically."

28 During the trial, no issue was raised about the accuracy of the transcription of the complainant's answer. That issue was first raised when this appeal prompted counsel to focus on the evidence of her explanation for her fear. Having listened to the audiotape of her answer, counsel were unable to agree on precisely what she said in that portion of her answer which refers to a friend of the appellant. This indicates that this aspect of the complainant's evidence did not assume any significance in the course of the trial. Incidentally, had it done so, and had it been considered necessary to determine precisely what the complainant had said, that determination would have been for the jury, not the transcriber, counsel, or the trial judge, JWM (1999) 106 A Crim R 267.

29 The only indirect reference the learned trial judge made to the evidence in contention in his summation to the jury was as follows:

"She agreed that she did phone the police on about 1 December wanting to, not to proceed, she said she was scared for the children and herself."

30 Counsel for the appellant on his trial was alert to the limited purpose for which the evidence now in contention had been admitted, that is, to explain the accused's state of mind. In his closing address to the jury he in substance emphasised that the appellant's explanation for being scared did not provide any evidence of the basis for her concern. Counsel said:

"But then before Mr Marlow is charged, and this is important, before Mr Marlow is charged, before there is any suggestion from the police that Mr Marlow has done something wrong, she reflects, and in my submission she realises that the allegation she made is false and she tries to stop it. She calls the police.

Now remember in re-examination there was some suggestion that her son, [sic] that some unnamed, unidentified man with a rifle might cause her and her son harm. There is no evidence of that. Absolutely no evidence."

31 As to the proposition pressed on behalf of the appellant for the purposes of this appeal, that the evidence in contention may have been impermissibly used by the jury to reach an adverse conclusion about the appellant's character and as to his credibility, it is pertinent that at no time did counsel for the Crown seek to so use the evidence. The only reference she made to this evidence during the trial was in the course of her closing address to the jury when she said the complainant "was considering not proceeding with these charges and the reason was she was scared of the consequences to her and to her children."

32 The learned trial judge adequately encapsulated the evidence in contention in the indirect reference he made to it in his summation. Although his Honour did not reiterate the complainant's explanation for her fear, in my respectful view, it was sufficiently apparent that the purpose of the evidence was to explain the complainant's state of mind when she said she did not want to proceed with the prosecution. With the benefit of hindsight (albeit at the risk of causing the jury to give unwarranted attention to the evidence) it would have been better if his Honour had told the jury that they were not to use the complainant's explanation for being scared for any purpose other than the issue of her state of mind. That his Honour did not do so does not necessarily mean that he misdirected the jury, Gipp v R (1998) 194 CLR 106 at 133 par78. Having regard to the matters referred to by Underwood J and the manner in which the case was conducted, there is, in my view, no reason to suppose that the jury might have used the evidence improperly.