GROUND 3
25 The third ground of appeal is that the Judge Advocate erred in law and a material irregularity occurred by directing the Court Martial Panel that statements made by the complainant soon after the alleged incident could be used as evidence of the conduct of the appellant and in respect of his purpose in using the mirror, whereby a substantial miscarriage of justice has occurred.
26 As background to this ground, it is helpful to recapitulate that at the heart of the charge of indecency was the allegation that the appellant committed an act of indecency in "using a mirror to peer under [the complainant's] shower cubicle in order to watch her … naked". It was the appellant's alleged purpose in the use of the mirror that was said to render the act charged an indecent one.
27 The complainant gave direct evidence of what she saw, namely "a mirror coming from the shower next to me", which "got pulled away the second time I looked" after "a couple of seconds". The mirror "was being held in a palm of the hand, I saw some fingers at the bottom"; she thought "it was the tips of the fingers" and that the mirror was "roughly five to seven centimetres by 10 to 15 centimetres".
28 The complainant also gave evidence that, having wrapped her towel around herself, she rushed out of the shower and encountered LEUT Andersen, and told him that LEUT McLaren had a mirror and was looking at her. Shortly afterwards, she told PO Hoffman that LEUT McLaren had a mirror in the shower and was watching her.
29 LEUT Andersen gave evidence that the complainant said to him, "Jim's down there and he has a mirror". "He's looked underneath the shower cubicle". PO Hoffman gave evidence that the complainant told her "[t]here was a mirror under the shower", and in answer to a question "[w]ho was it", responded "Jim McLaren". CPONPC Apperley gave evidence that the complainant told him "that she was in the shower and that Jim McLaren had been looking at her with a mirror from under the shower".
30 In the course of her summing up, the learned Judge Advocate instructed the panel (at T203.16-21):
"In this case you have the direct evidence of the complainant as to the particular allegations made. The contested evidence before you is direct evidence from witnesses testifying to particular facts. This case also primarily focuses on the direct evidence of witnesses who say they were told certain things by the complainant. I will come to that evidence shortly and give you directions about how you can use that evidence." (Emphasis added).
31 The Judge Advocate then summarised the evidence of the complainant as to what she had observed and done, interposing (at T210.43-44) that "she had a conversation with LEUT Andersen that I will come to later". Subsequently (at T212.08-12), the Judge Advocate said:
"There has been some evidence in this trial about what the complainant said to LEUT Andersen, PO Hoffman and CPONPC Apperley about the alleged offence. The prosecution relies upon what the complainant said after having the accused commit the alleged act of indecency in her presence as further that that conduct did occur in her presence".
32 The Judge Advocate summarised (at T212.14-33) the complainant's evidence of what she had told LEUT Andersen, and LEUT Andersen's evidence of that conversation; the complainant's evidence of what she had said to PO Hoffman and PO Hoffman's version (at T213.25 - 214.08), and the complainant's version of what she had told CPONPC Apperley and CPONPC Apperley's version (at T214.10-33); and then instructed the panel that if those complaints were made and were consistent with the manner in which one would expect her to act had she been the subject of the alleged conduct, that may support the prosecution case because it made her evidence more believable. That direction is unexceptionable. The Judge Advocate then continued (at T214.44 - 215.04):
"You may find that there is a consistency between the complainant's conduct and the allegation she makes against the accused. Further, you can use what she said about the accused's conduct toward her as some evidence of the truth of what she said; that is, as evidence that the accused did in fact use the mirror in the shower cubicle in the way that she alleges he did." (Emphasis added).
33 Subsequently, the Judge Advocate instructed the panel (at T219.33-220.01):
"In relation to the part of this element that states that the accused was using the mirror to peer at the complainant while she was showering naked, in addition to the direct evidence of the complainant that she saw the mirror cupped in the hand of the accused, pointed in her direction, you're required to draw inferences in relation to the use that he was making of that mirror, if you accept the complainants (sic) evidence is in fact true.
While the complainant herself thought that the accused was trying to peer at her naked in the shower because he withdrew the mirror as soon as she focused on it, just because the complainant thought that the accused was peering at her is not enough. You have to be satisfied beyond reasonable doubt that that was the case. You may think that that is sufficient but you must come to that conclusion independently of what the complainant thought." (Emphasis added).
34 It is not in doubt that evidence of recent complaint is relevant not only to the credibility of the complainant but also can rationally affect the assessment of the probability of a fact in issue in the proceedings. That, despite its hearsay character, it is admissible for that purpose is a consequence of s 66 of the Evidence Act 1995 (Cth) ("the Evidence Act"): see Papakosmas v The Queen (1999) 196 CLR 297, [22], [30] (Gleeson CJ and Hayne J), [88] (McHugh J). Thus, the evidence of recent complaint could permissibly be used to support the complainant's credibility, and also to reinforce the complainant's evidence of what she had observed.
35 However, the Judge Advocate's direction went further. The complainant's statements to others that the appellant "was looking at her with a mirror" were not statements of a fact that she had observed, but of an inference that she had drawn from observed facts. The complainant could not permissibly have given evidence from the witness box as to what she believed the appellant's purpose was. The question is whether, by operation of s 66, her belief that the appellant was using the mirror to peer at her, as conveyed to others at the time, could be used as evidence that he had in fact used the mirror in the manner and for the purpose alleged.
36 The respondent endeavoured to support the use of this evidence authorised by the Judge Advocate's direction on the basis that it was admissible lay opinion evidence. Section 76 of the Evidence Act, provides that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed, but this is subject inter alia to the exception contained in s 78 that the opinion rule does not apply to evidence of an opinion expressed by a person if the opinion is based on what the person saw, heard or otherwise perceived about a matter or event, and evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event.
37 In R v Whyte [2006] NSWCCA 75, evidence was admitted in a rape case that the appellant had told her mother "a man tried to rape me". Spigelman CJ said, at [31], that the victim of a sexual assault "who has a belief as to what is being done is entitled to express that belief", so that a belief of a woman who had been assaulted that the intention of the attack was sexual gratification was admissible. His Honour accepted that s 78 of the Evidence Act was engaged, as "an opinion of this character is obviously based on what the complainant perceived and, in my opinion, it was, in this case, necessary to obtain an adequate account of that perception".
38 Simpson J, however, took a different view. First, her Honour recognised that evidence of recent complaint, traditionally, was never admitted as evidence of the truth of the content of what was said by the complainant by way of complaint, and juries were invariably cautioned as to the use they could make of that kind of evidence (at [47]). Next, her Honour explained that the Evidence Act had brought a significant change, as affirmed in Papakosmas. In particular, while the hearsay rule is preserved (pursuant to s 59), s 60 permits evidence to be given of a previous representation that is relevant for a purpose other than proof of the fact intended to be asserted by the person who made the previous representation, and in a criminal proceeding where a person who made a previous representation is available to give evidence about an asserted fact, s 66 applies (where that person has been or is to be called to give evidence) to permit evidence of the previous representation to be given by the person who made it or a person who saw, heard or otherwise perceived it being made if at the time the occurrence of the asserted fact was fresh in the memory of the maker. Her Honour concluded (at [49]):
"In my opinion, evidence of complaint in sexual cases is now made admissible under s 60, in order to prove something other than the fact asserted - it is, as was traditional, admissible to prove consistency of conduct, and thus enhance the credibility of the complainant. Depending upon the content of the complaint, it may also, under s 66, be admissible as evidence of the truth of the fact or facts asserted."
39 Her Honour then said (at [51]):
"[51] The appeal, and, indeed, the argument at trial, were at all times conducted on the basis that the admissibility of the evidence depended upon s 66 of the Evidence Act. However, in my opinion, that is an erroneous assumption. S 66 and other sections providing exceptions to the hearsay rule only permit hearsay evidence to be given of an assertion that would, in the ordinary course, be admissible through the mouth of the person who made the previous representation in question - that is, the person who, within s 59, intended to assert a fact. The exceptions to the hearsay rule do not permit hearsay evidence to be given of a fact or matter of which the person who made the hearsay representation would not be able to give direct evidence. To invoke an ancient but useful cliché, a stream cannot rise higher than its source. The exceptions to the hearsay rule relax the restrictions on the admissibility of hearsay evidence, but only of hearsay evidence that would otherwise be admissible. They do not permit evidence to be given indirectly that would not be admissible directly.
[52] That is why it is important to recognise the character of the fact intended to be asserted by the complainant. In saying that the appellant tried to rape her, she was not asserting that he conducted himself in any particular fashion: she was asserting that he had a particular state of mind - an intention to rape her."
[53] The complainant would not have been permitted to give this evidence in court. (Indeed, no attempt was made to have her give such evidence.) Why would she not be permitted to give that evidence in court? There are two reasons. Firstly, what was within the appellant's mind was not within the complainant's knowledge and was not made admissible by any other provision of the Evidence Act. What she said was, properly characterised, her conclusion, drawn from the conduct she observed, of what was in the appellant's mind. Her conclusion as to what was in the appellant's mind was not relevant to any issue in the proceedings. (What in fact was in the appellant's mind was very much relevant to the proceedings - it is the complainant's conclusion or assumption as to what was in his mind that is irrelevant.) The second reason the complainant would not have been permitted to give evidence of what was in the appellant's mind is that that was a critical issue for the jury to determine. It was an element in the Crown case.
[54] In my opinion, the complainant's evidence of what she said to her mother was, however, admissible under s 60 - it was admissible for a purpose other than proving what was in the appellant's mind. It was, in the traditional way, admissible to establish consistency of conduct on the part of the complainant, and to enhance her credibility. It was not admissible under s 66 to prove the truth of the fact asserted by the complainant.
[55] The use to be made of the evidence ought to have been limited, under s 136, and the jury directed that the complainant's assertion of (what she concluded to be) the appellant's intention could not be used as evidence that that was indeed his intention." (Emphasis added).
40 Her Honour then turned to whether the complainant's inference was admissible lay opinion evidence under s 78. While accepting that the first condition in s 78 was satisfied, her Honour said that the second was not (at [57]):
"Evidence of the complainant's opinion is not necessary to obtain (or to give the jury) an adequate account or understanding of her perception of the matters and events in question. S 78 does not operate to render the complainant's statement admissible as opinion evidence."
41 The third member of the Court, Barr J, said that the trial judge was correct in not making a s 136 order, and that the evidence was admissible for a hearsay purpose pursuant to s 66. But his Honour proceeded on the basis, first, that the evidence in question was admissible as evidence of complaint under s 60; and secondly, that it was admissible for a hearsay purpose under s 66 on the footing that the complainant was not expressing an opinion about what she had observed but was reporting an event, so that there was no occasion for limiting the use of the evidence of what she had told her mother.
42 R v Whyte was considered by the New South Wales Court of Criminal Appeal in Partington v R [2009] NSWCCA 232. McClellan CJ at CL said (at [43]):
"In R v Whyte (2006) NSWCCA 75 the question was whether evidence from a complainant that she had told her mother "a man tried to rape me" was admissible. This court was divided. Barr J took the view that it was admissible being the reporting of an event and not an opinion. Spigelman CJ held that it was admissible pursuant to s 78, Simpson J that it was not. Their Honours took a different view of the question raised by s 78(b) of the Act. Section 78(a) was satisfied - the opinion was based on what she saw and heard - the more difficult question being whether the opinion was "necessary" as required by s 78(b)."
43 After citing extracts from each of the judgments, his Honour continued (at [46]) :
"It is obvious that s 78 allows the admission of an opinion in limited circumstances. Not every opinion which a witness forms after being involved in an event is admissible. It will only be admissible if it is necessary to obtain an adequate account or understanding of what the person perceived of the matter or event. If, for example, a witness observed an altercation between two persons and one of them threw a punch a witness could say that he was of the opinion that the punch was thrown with the intention of hitting another. An observer of a person raising their voice could say whether the voice was raised in anger. A witness could give evidence of their opinion of the speed of a motor vehicle or the age of a person. In each case assuming an accurate account of the event is relevant, the witness is able by expressing an opinion about what they observed, to provide an adequate account or understanding of the witness' perception of the event. However, merely because a person who observed a matter or event forms an opinion about it does not make that opinion admissible." (Emphasis added.)
44 His Honour then turned to the facts of the case in question (at [47]):
"[47] In the present case LB both saw the door and heard noises outside of it. That is the event, or in fact the sequence of continuous events, which she both saw and heard. There was no difficulty in understanding her account of that event. However, she did not see, although obviously she heard, the sounds of the event which was happening on the other side of the door. Although she may have had an opinion, either speculative or an informed guess, as to what was happening outside the door she did not relevantly perceive that event. Her perception was confined to what she could see and hear on the inside. The door deprived her of any capacity to perceive what was happening on the outside. Evidence as to her opinion as to what may have been happening outside the door was not necessary to understand what she perceived from her position inside the room. She was able to give an account of her perception of the event - what she saw and heard - without proffering her opinion as to what she believed was taking place on the other side of the door. It follows that the portions of LB's evidence identified in the appeal and which I have underlined in the extracts from the transcript should have been objected to and rejected." (Emphasis added).
45 Grove J agreed with McClellan CJ at CL to the extent of the evidence that the witness had heard "a head" being pushed against the door (at [61]), and that to that extent s 78(b) would not be fulfilled. RA Hulme J agreed with McClellan CJ at CL (at [68]).
46 The approach adopted by the court in Partington supports the view of s 78(b) taken by Simpson J in Whyte. So do the plain words of s 78 of the Evidence Act. As McClellan CJ at CL said, there was no difficulty in understanding the witness's account of the events that she saw and heard without admitting her opinion as to what was happening outside the door that she could not perceive. She was able to give an understandable account of her perception of the event without proffering an opinion as to what she believed was taking place on the other side of the door. Likewise, in Whyte, evidence of the complainant's opinion that the accused had tried to rape her was not necessary to obtain or give the jury an adequate account or understanding of the perception of the matters and events in question. With great respect, the approach adopted by Spigelman CJ inverts the test; the question is whether evidence of the opinion is necessary to obtain an adequate account or understanding of the witness's perception of the facts, and that directs attention in the first place to the account of the facts; whereas his Honour appears to have asked first whether the opinion was admissible, and then to permit it on the basis that it was founded on a perception of the facts. Section 78 is not intended to render admissible a witness's inferences derived from observed facts, but to make admissible opinions only where they are necessary to obtain an adequate account or understanding of the observed facts. It is a useful approach, when considering whether to admit opinion evidence under s 78, to ask first what if any deficiency there is in the adequacy of the account or understanding of the witness's perception of the facts that the opinion, if admitted, would serve to illuminate.
47 Moreover, insofar as Spigelman CJ appears to have held that the complainant's opinion was admissible to prove the accused's sexual purpose, we respectfully disagree. As Simpson J said, what was within the appellant's mind was not within the complainant's knowledge and was not made admissible by any other provision of the Evidence Act, but was her conclusion drawn from the conduct she observed of what was in the appellant's mind, which was not relevant to any issue in the proceedings.
48 Accordingly, we conclude, conformably with the judgment of Simpson J in Whyte, that s 66 does not make a previous representation admissible except "about an asserted fact" of which the person making the previous representation could otherwise have given evidence; and that s 78 does not make an inference drawn by a witness from observed facts admissible, except where an adequate account or understanding of the witness's perception of the observed cannot otherwise be gained.
49 Turning then to the present case, the evidence of complaint was admissible, pursuant to s 60, to prove consistency of conduct and enhance the credibility of the complainant. It was also admissible, pursuant to s 66, as evidence of the truth of the facts asserted, to the extent that the complainant could have given direct evidence of those facts. Accordingly, the evidence of complaint could be used as evidence that she had seen a mirror under the cubicle. However, the complainant could not and did not give evidence in court to the effect that she believed that the appellant was using the mirror to look at her. The appellant's purpose was not within her knowledge. What she told others in that respect was her inference or conclusion drawn from the conduct she observed. The complainant's description of what she perceived was an adequate and understandable account, which would not be rendered any more adequate or understandable by evidence of her opinion as to the manner in or purpose for which the appellant was using the mirror that she observed. Section 78(b) was not satisfied, and the complainant's inference was not admissible as a lay opinion. It follows that her inference as to the appellant's purpose was not relevant to any issue in the proceedings; it could not be used as evidence of what was in fact the appellant's purpose.
50 The evidence of complaint was accordingly not admissible under s 66 and/or s 78 to prove the truth of the assertion that the appellant used the mirror in the manner alleged. The use to be made of the evidence ought to have been limited under s 136 of the Evidence Act and the panel directed that the complainant's assertion of what she inferred to be the appellant's intention could not be used as evidence that that was indeed his intention. Not only was no such limiting direction under s 136 given, but the panel was expressly told that it could use the complainant's evidence "as evidence that the accused did in fact use the mirror in the shower cubicle in the way that she alleges he did". Moreover, in the subsequent passage (at T219.33-220.01), the Judge Advocate effectively drew to the attention of the panel the irrelevant opinion of the complainant as to the appellant's purpose and, while telling the panel that it had to come to its own conclusion, effectively authorised it to do so on the basis of the complainant's irrelevant opinion: "You may think that that is sufficient …". These directions were wrong in law, and amounted to a material irregularity in the course of the proceedings.
Substantial miscarriage of justice
51 This Tribunal is obliged to allow the appeal and quash the conviction where it appears that, as a result of a wrong decision on a question of law, or of mixed law and fact, the conviction was wrong in law and that a substantial miscarriage of justice has occurred, or that there was a material irregularity in the course of the proceedings before the Court Martial and a substantial miscarriage of justice has occurred: see Defence Force Discipline Appeals Act 1955 (Cth), s 23(1)(b), (c).
52 In Hembury v Chief of the General Staff (1998) 193 CLR 641, Gummow and Callinan JJ, with whom Hayne J agreed, held that a misdirection on a matter of law in a non-judicial proceeding gave rise to an assumption that the proceedings had resulted in a substantial miscarriage of justice, and that it was wrong to apply principles developed in cases concerning provisos in criminal appeal legislation about "substantial miscarriage of justice": see also Li v Chief of Army [2013] HCA 49 at [31]-[32]. Their Honours cited the judgment of Cussen J in Holford v Melbourne Tramway & Omnibus Co Ltd [1909] VLR 497, for the proposition that it was erroneous to think that there could be no miscarriage unless it could be shown that the jury was in fact influenced in giving their verdict by a misdirection. His Honour had said (at 526):
"There is a wrong or miscarriage occasioned by a misdirection in law, or as to the application of evidence, if, as a final result of what has been said by the Judge, the jury retire to their room under a wrong impression in relation to these matters, and the result of the case is such as to show that they may have been influenced in their verdict by the misdirection."
53 That passage was adopted by Dixon CJ in Balenzuela v De Gail (1959) 101 CLR 226 (at 233); Windeyer J, agreeing with Dixon CJ, emphasised (at 244) that where the complaint was one of misdirection of law, "there has been an error in law; and the court must assume that it has, or may have, resulted in a miscarriage of justice, for a party has a right to have his case tried according to law". These passages were cited with approval by Gummow and Callinan JJ in Hembury.
54 In Hembury, Kirby J held that a legal misdirection about a matter of procedure which, where conviction was neither legally nor factually inevitable, might have affected the outcome of the proceedings, was such as to give rise to a substantial miscarriage of justice. His Honour said (at 671):
"Although there will be occasions where a misdirection amounting to a 'material irregularity' will not constitute a 'substantial miscarriage of justice' … such cases will be comparatively rare. They might present themselves where the misdirection is viewed, in the context, as generally favourable to the appellant. Or where, for some other reason, the decision arrived at was legally or factually inevitable or virtually inevitable. Against the background of legal history, and the strict approach conventionally taken to errors of law, the words 'substantial miscarriage of justice' in a provision such as s 23 are used in contradistinction to a miscarriage which is de minimus. Where the material irregularity concerns a legal misdirection about a matter of procedure which might have affected the outcome of the proceedings that will ordinarily amount to a substantial miscarriage of justice".
55 In the present case, for the reasons explained above, the Court Martial Panel was, by the Judge Advocate's summing up, authorised to use the complaint evidence for a purpose for which it was irrelevant and impermissible, and on the central issue in the case, the appellant's purpose. Moreover, the panel was told that, though it needed to reach its own conclusion, it may think that the complainant's (irrelevant) opinion was a sufficient basis for it to do so. In Whyte, Simpson J said (at [58]) that the evidence could have done no harm to the appellant as it would plainly have been perceived by the jury as the complainant's conclusion drawn by her from the facts and circumstances she had described. In the present case, in distinction, the panel was told that it could use the evidence as evidence (and even sufficient evidence) on the crucial issue. The possibility that the panel so used the evidence is, in the light of the directions it was given, a very real one; at the least, it cannot be excluded. There was, it follows, prima facie, a substantial miscarriage of justice.
56 The respondent submitted that the appellant had not discharged the burden of establishing a miscarriage of justice in circumstances where no s 136 direction had been sought, nor - following the summing up - any redirection, citing authority in the High Court for the proposition that only in an exceptional case would special leave to appeal be granted from a decision of a Court of Criminal Appeal affirming a conviction when the point raised was not taken either at trial or in the Court of Criminal Appeal: see HML v The Queen (2008) 235 CLR 334, [207] (Hayne J); see also Giannarelli v The Queen (1983) 154 CLR 212, 221 (Gibbs CJ); Crampton v The Queen (2000) 206 CLR 161, [8]-[19] (Gleeson CJ); Fingleton v The Queen (2005) 227 CLR 166, [147]-[148] (Kirby J). However, the discretion to grant leave to appeal is far removed from the statutory obligation of this Tribunal to allow an appeal where satisfied that there has been a substantial miscarriage of justice. Nor is this Tribunal constrained by any such rule as r 4 of the Criminal Appeal Rules (NSW), providing that no direction, omission to direct, or decision as to the admission or rejection of evidence, given by the judge presiding at the trial, shall, without the leave of the court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal.
57 It is true that no objection was taken to the complaint evidence at the Court Martial, nor any redirection sought. The Judge Advocate's attention was not drawn to the principal authorities to which we have referred and she did not have the benefit of submissions about the issues which they raised. As the complaint evidence was admissible in any event pursuant to s 60 and s 66, there was neither error in admitting it nor in failing to take objection to it. The omission to seek a s 136 direction might have carried greater weight had the Judge Advocate correctly instructed the panel as to the use to which the evidence could be put, rather than expressly enlarging the use to which it might be put. While no redirection was sought in that respect after the summing up, that omission does not remove the possibility that the panel used the complaint evidence, as directed and authorised in the summing up, on the central issue in the trial.
58 There may be cases in which a failure to take objection or to seek a redirection is relevant to the overall judgment whether there has been a substantial miscarriage of justice. If there are, however, this is not one of them. It cannot be said that conviction was inevitable, and there is a distinct possibility, given the errors in the summing up, that the panel used the complaint evidence impermissibly to resolve the crucial issue adversely to the appellant.
59 On this ground, therefore, the appeal should succeed.