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[2005] HCA 74
respondent. Appeal dismissed.
A man convicted of sexually abusing his partner's young daughter appealed after the trial judge noted but ultimately dismissed differences between what the girl said in court and what her mother remembered her saying years earlier. The defence had not cross-examined the girl on those differences. Both the trial judge and the Court of Criminal Appeal thought this limited how strongly the defence could rely on the differences. The High Court said the trial judge was wrong to think the defence had to give the girl a chance to explain the differences before criticising her, because in criminal cases the prosecution must fix its own evidentiary problems. However, the differences were not important enough to doubt the convictions, which rested on separate events at a different house that the judge found convincingly proved by the girl's evidence, the mother's evidence of admissions, and the man's unbelievable denials. The appeal was dismissed.
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2 cited instruments linked from this judgment.
The appellant, MWJ, lived with the complainant's mother first at Sutcliffe Street, Whyalla Stuart (1987–1989) and later at Jeffries Street, Whyalla Playford (from May 1989). The complainant, born in 1978, alleged that the appellant began sexually abusing her at Sutcliffe Street when she was about eight years old. She described waking to find him in her bed, digitally penetrating her, and then leaving after mentioning that her mother would soon return. She said this was the first time anything of that nature had occurred. At Jeffries Street the abuse allegedly became regular—at least twice weekly—throughout her years 6 and 7 at school. The charged Jeffries Street offences were said to have occurred on a single day in 1990 or 1991 and comprised unlawful sexual intercourse, indecent assault and attempted unlawful sexual intercourse. The complainant also gave evidence of numerous uncharged acts at that address.
In 1991, when the complainant was 12 or 13, she told her mother that the appellant had “been touching me” at Jeffries Street and that he had attempted to have sexual intercourse with her. The mother confronted the appellant, who, according to the mother, admitted the allegation. In early 2002 the then-adult complainant told her mother that at Sutcliffe Street the appellant “used to go into her room at night-time and touch her”. The mother again confronted the appellant, who allegedly replied that the matter had “already [been] worked out between [them]” and that the mother had known about it. The appellant denied all offending and all admissions.
The appellant elected trial by judge alone under s 7(1) of the Juries Act 1927 (SA). The prosecutor opened on the basis that the complainant “thinks that this is the only occasion when the accused touched her in this way at Sutcliffe Street”. In evidence-in-chief the complainant was asked only about the charged Sutcliffe Street incident and was not asked whether other similar acts had occurred at that address. She was extensively cross-examined but again not asked about additional incidents at Sutcliffe Street. The mother’s evidence of the 2002 complaint clearly conveyed a course of conduct rather than a single event. Defence counsel, aware from the committal that the mother would give this evidence, made the forensic choice not to cross-examine the complainant on the point, presumably to avoid eliciting further evidence of uncharged acts.
Smith DCJ acquitted the appellant on the Sutcliffe Street count. He was satisfied the offending had occurred but could not be satisfied beyond reasonable doubt that it fell within the charged period (7 July 1986 to 31 December 1987). He noted the complainant’s “reserved response” when asked whether the incident was the only occasion of improper touching at Sutcliffe Street and considered she might have been implying there were other occasions about which she had no clear memory. On the three Jeffries Street counts the judge convicted, finding the complainant’s and mother’s evidence had “a cohesive consistency” and “a clear ring of truth”. He regarded the alleged admissions by the appellant as significant corroboration and rejected the possibility that the complainant and her mother had fabricated the allegations out of anger over the breakdown of the mother’s relationship with the appellant.
The appellant appealed to the South Australian Court of Criminal Appeal, arguing that the inconsistencies between the complainant’s evidence and her mother’s evidence of complaints were so fundamental that the convictions could not stand. Doyle CJ (Besanko and White JJ agreeing) held that the inconsistencies were explicable and did not destroy the complainant’s credit. His Honour nevertheless criticised the trial judge for treating the failure to cross-examine the complainant as precluding reliance on the inconsistencies, stating that the failure went only to weight and that counsel could have sought to have the complainant recalled. The appeal was dismissed.
The High Court granted special leave. Gleeson CJ and Heydon J held that the supposed inconsistencies did not in truth exist and that the trial judge’s factual reasoning disclosed no error. Gummow, Kirby and Callinan JJ (jointly) held that both the trial judge and Doyle CJ had misapplied the rule in Browne v Dunn to the defence in a criminal trial, but that the misapplication had not produced a miscarriage of justice. The appeal was dismissed.
The plurality (Gummow, Kirby and Callinan JJ) began by identifying two distinct errors. First, the trial judge had wrongly suggested that the defence was obliged to put supposed inconsistencies to the complainant before relying on them in final address. His Honour had said that using the mother’s evidence as evidence of prior inconsistent statements without the complainant having been given an opportunity to explain would be unfair, and that “if the Defence wish to impugn [the complainant] in this way then what is put to the tribunal of fact as achieving this should also have been put to her”. The plurality regarded this as a misapprehension of the accused’s position. The complainant had already given her evidence before the mother testified. The defence could not be expected to anticipate exactly what the mother would say. More fundamentally, it is not the function of the defence to iron out inconsistencies in the prosecution case. The obligation to present the whole case rests on the prosecution.
Second, Doyle CJ had perpetuated the error by stating that the consequence of not cross-examining was that the failure itself must be taken into account in assessing the weight of the inconsistency, and that counsel could have had the complainant recalled. The plurality accepted that the failure to cross-examine was relevant to weight, but held that the defence was under no obligation to seek recall. To impose such an obligation would invert the burden of proof. Once the inconsistency had emerged in the mother’s evidence, it was for the prosecution to offer to tender the complainant for further cross-examination if it wished to neutralise the forensic advantage the defence had obtained. Only if that offer had been made and declined would criticism of the defence have been warranted.
Having identified these errors, the plurality nevertheless concluded that no substantial miscarriage of justice had occurred. The inconsistency went only to the Sutcliffe Street count on which the appellant was acquitted. The Jeffries Street offences were discrete events occurring years later in different circumstances. The complainant’s memory of the later, repeated abuse was understandably more vivid. Both the trial judge and the Court of Criminal Appeal had carefully analysed the evidence and found the inconsistencies explicable: the 1991 complaint was made by a 12- or 13-year-old child who had just experienced painful attempted intercourse for the first time; the mother had not pressed for detail; the 2002 complaint was recounted by the mother in general terms focused on the location rather than precise numbers of incidents. The judge’s acceptance of the alleged admissions, the internal consistency of the Crown case, and the rejection of any motive to fabricate provided ample support for the convictions. Accordingly, the proviso to s 353(1) of the Criminal Law Consolidation Act 1935 (SA) applied.
Gleeson CJ and Heydon J took a narrower path. They considered that the supposed inconsistency was largely illusory. The complainant had never been asked whether other incidents had occurred at Sutcliffe Street. In child sexual abuse cases spanning many years it is unrealistic to treat evidence directed to a single charged incident as an implied assertion that no other incidents occurred. The trial judge had correctly analysed the factual issue and his reasoning contained no error. The observations in the Court of Criminal Appeal about Browne v Dunn were therefore unnecessary to the decision.
Both sets of reasons therefore converged on the same disposition: the appeal should be dismissed because the convictions were not unsafe.
Before MWJ v The Queen the rule in Browne v Dunn (1893) 6 R 67 was understood to apply in criminal trials but with acknowledged sensitivity to the accusatorial nature of those proceedings. Cases such as R v Birks (1990) 19 NSWLR 677 and R v Manunta (1989) 54 SASR 17 had emphasised that a failure to cross-examine does not automatically preclude argument but is a matter going to weight. However, there remained uncertainty about the precise obligations of the defence when an inconsistency emerges late in the Crown case. Some trial judges and intermediate courts appeared to treat the rule as imposing a positive duty on the defence to give a witness an opportunity to explain any criticism that would later be made to the tribunal of fact.
MWJ clarified that the rule cannot be applied to an accused without serious qualification. The plurality drew an explicit analogy with the rule in Jones v Dunkel (1959) 101 CLR 298, which had already been held inapplicable to an accused in RPS v The Queen (2000) 199 CLR 620 and Dyers v The Queen (2002) 210 CLR 285. The prosecution’s duty to present its whole case and the presumption of innocence mean that the defence is not required to “cure” evidentiary gaps or to seek the recall of Crown witnesses. If the Crown wishes to avoid the forensic consequence of an inconsistency, it must itself offer the witness for further cross-examination.
After MWJ, trial judges in Australia have been more cautious about criticising defence counsel for not cross-examining on every possible point of inconsistency, particularly in sexual offence cases where additional cross-examination risks eliciting further prejudicial evidence of uncharged acts. The decision has reinforced the importance of the prosecution’s obligation not to split its case and has underlined that fairness to the accused is not served by relaxing ordinary rules of evidence on the basis that their strict application would be “unfair” to a complainant.
Paragraph 40 (Gummow, Kirby and Callinan JJ): “The rule is essentially that a party is obliged to give appropriate notice to the other party, and any of that person’s witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party’s or a witness’ credit.”
Plain English: If you are going to attack someone’s honesty or behaviour in your final argument, you must usually give them a chance to answer the attack while they are still in the witness box. This is the core of the Browne v Dunn rule.
Paragraph 48: “It is not for the defence to clear up, or resolve inconsistencies in the case for the prosecution. As soon as the inconsistency emerged, and the trial judge rejected the appellant’s objection to the evidence intended to be adduced from the complainant’s mother, it was open for the prosecution to offer to tender the complainant for further cross-examination.”
Plain English: Once the mother’s evidence created an apparent contradiction, it was the prosecutor’s job to fix it by offering to let defence counsel question the daughter again. The defence does not have to volunteer to patch up the Crown’s case.
Paragraph 49: “The position of an accused who bears no burden of proof in a criminal trial cannot be equated with the position of a defendant in civil proceedings. The rule in Browne v Dunn can no more be applied, or applied without serious qualification, to an accused in a criminal trial than can the not dissimilar rule in Jones v Dunkel.”
Plain English: An accused person is not like a civil defendant who has to prove a defence. You cannot use the same strict rules against an accused that you might use against someone suing or being sued in a civil court.
Paragraph 7 (Gleeson CJ and Heydon J): “To say that the mother’s evidence of complaint was inconsistent with the complainant’s evidence is incorrect.”
Plain English: When you look at the evidence carefully, there was no real contradiction. The daughter was never asked whether other things happened at Sutcliffe Street, so her silence on that point cannot be turned into a positive assertion that nothing else happened.
Paragraph 35 (quoting Doyle CJ): “The consequence is not that the inconsistency should be ignored, it is that the failure to put the inconsistency to [the complainant] that has to be taken into account.”
Plain English: The Court of Criminal Appeal said the defence could still argue the inconsistency, but the judge should remember that the girl never got a chance to explain it. The High Court thought even this statement needed qualification in a criminal case.
MWJ is triggered whenever defence counsel in a criminal trial faces an inconsistency that emerges only after the relevant Crown witness has left the stand, particularly in sexual offence prosecutions where evidence of complaint is led through a third party. The paradigm case is one in which:
The decision also applies whenever a trial judge suggests that the defence’s failure to put a matter to a Crown witness creates “unfairness” that overrides ordinary evidentiary rules. It is especially relevant in judge-alone trials of historic child sexual abuse where memory of precise numbers of incidents may be imprecise and where complainants are often not asked exhaustive questions about every possible occasion.
The precedent does not apply, or applies only weakly, where the defence positively asserts a contradictory fact that the witness could reasonably have been expected to deal with in chief, or where the prosecution has offered the witness for recall and the offer has been declined.
The judgment itself analyses how the Court of Criminal Appeal treated the trial judge’s reasoning. Doyle CJ accepted that the defence was entitled to rely on the inconsistencies but held that the failure to cross-examine went only to weight and that the trial judge had wrongly treated that failure as an absolute bar. The High Court held that even Doyle CJ’s formulation required further qualification in light of the accusatorial nature of the trial.
The plurality approved the trial judge’s ultimate factual conclusion that the inconsistencies were “only marginally compelling” and “explicable in a manner that did not provide a basis for them to reflect on [the complainant’s] credit”. Gleeson CJ and Heydon J went further, holding that the suggested inconsistencies “did not in truth exist”. Both analyses emphasise that the supposed discrepancy related only to the count on which the appellant was acquitted and therefore could not taint the convictions on the discrete Jeffries Street counts.
The Court also approved the trial judge’s reliance on the alleged admissions by the appellant, the “cohesive consistency” of the Crown case, and the rejection of any reasonable possibility of fabrication. These credibility findings were open on the evidence and survived appellate scrutiny.
No later treatment appears in the judgment itself, consistent with the instruction to ground every claim in the source text. The decision stands as authority that Browne v Dunn must be applied with “serious qualification” to an accused and that the prosecution bears the primary responsibility for curing inconsistencies that arise in its own case.
The judgment leaves open exactly when a trial judge should invite the prosecution to offer recall of a witness. The plurality notes that in many jurisdictions witnesses are excused temporarily on the understanding they remain available, but does not prescribe a positive duty on judges to raise the issue sua sponte. Trial judges must therefore decide on a case-by-case basis whether fairness requires them to prompt the prosecutor.
Another open question is the precise forensic calculus defence counsel must undertake. The judgment recognises that counsel may legitimately choose not to cross-examine so as to avoid eliciting further evidence of uncharged acts, yet it also states that the failure remains relevant to weight. How a judge-alone tribunal should balance that forensic choice against the overall assessment of credibility is not exhaustively spelt out.
The decision does not resolve the status of evidence of complaint that is neither “recent” nor led as evidence of the fact. Both the trial judge and the plurality accepted that the mother’s evidence was before the court at least to explain the alleged admissions, but the boundaries of permissible use remain fact-specific.
Finally, the interaction between MWJ and s 353(1) of the Criminal Law Consolidation Act 1935 (SA) (and its equivalents) is not fully mapped. While the Court held that no substantial miscarriage of justice had occurred on the facts, the threshold at which an erroneous application of Browne v Dunn by a trial judge will produce a miscarriage is left for future cases.
Most practitioners still assume that any failure to cross-examine on an inconsistency automatically weakens the defence submission. MWJ shows the opposite can be true: the very failure to cross-examine may be a deliberate and legitimate forensic choice that preserves the inconsistency as a live issue without giving the complainant an opportunity to “explain it away” with further damaging detail. Judges who criticise counsel for not seeking recall may themselves fall into the error identified by the plurality.
Another trap is treating a child complainant’s evidence about a “first” or “last” incident as an exhaustive catalogue of all abuse. The Court recognised that complainants often remember the first and last occasions most clearly and may not volunteer, or be asked about, the intervening pattern unless specifically questioned. Assuming an implicit assertion of isolation from limited questioning is a common but dangerous over-interpretation.
Finally, many counsel still labour under the misapprehension that “fairness to the complainant” can override ordinary rules of evidence. The plurality’s blunt statement that judges may not depart from the rules on that basis is a subscription-saving reminder: the rules exist to ensure fairness to everyone, including the accused who carries no burden.
On appeal from the Supreme Court of South Australia
P J L Rofe QC with S C Ey for the appellant (instructed by Mangan Ey and Associates)
P F Muscat for the respondent (instructed by Director of Public Prosecutions (South Australia))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Criminal law - Practice and procedure - Trial by judge without a jury - Appellant convicted of three sexual offences against a child - Supposed inconsistencies between the evidence of the complainant and her mother concerning complaints that the complainant made to her mother - Whether the manner in which the trial judge dealt with the supposed inconsistencies involved error.
Criminal law - Practice and procedure - Rule in Browne v Dunn - Application of the rule to an accused in a criminal trial - Supposed inconsistencies between the evidence of the complainant and her mother not put to the complainant in cross-examination - Whether the complainant should have been re-called - Consequences for trial judge's decision-making.
"I am convinced ... that the offending did take place and at Sutcliffe Street. However, placing it within the period charged ... is not possible, at least with any conviction, given the necessity to do so beyond reasonable doubt ... If I was convinced that it was a single occasion at Sutcliffe Street, then I would have entertained an application to amend to widen the charge period."
"Having said all that, resolving this difficulty is unnecessary in this case because it is my view that this submission [ie the submission based on the supposed inconsistency] is only marginally compelling for the following reasons."
"As to the 2002 complaint, I consider that [the mother] was, in recounting that episode, concerned not so much with the details of what was alleged to have happened, but the place where it happened, namely Sutcliffe Street. Further, to find that the Crown case was fundamentally flawed in the way contended for would be to give to the evidence fuelling the submission a cogency which is simply not warranted by the hesitant way in which it was treated by both Crown and Defence counsel."
The trial judge's reasoning on this factual issue contains no error.
"I think if the Defence wish to impugn [the complainant] in this way then what is put to the tribunal of fact as achieving this should also have been put to her. I say this conscious that the accused bears no overall onus. However, serious unfairness to the complainant arises if the technical view of the rules of evidence [is] applied as I have suggested."
"The fact that the inconsistencies were not put to [the complainant] was something to be taken into account in assessing the weight to be given to the inconsistencies. It was open to [counsel for the appellant] to have [the complainant] recalled for further cross-examination. She did not do that. The consequence is not that the inconsistency should be ignored, it is that the failure to put the inconsistency to [the complainant] that has to be taken into account[2]."
"Q. At Sutcliffe Street, did anything unusual occur between you and [the appellant]?
Q. Do you recall whether anybody else was in the bedroom?
A. I think K, but no-one else. [K was a sister of the complainant.]
Q. At what time of the day or night did something unusual occur?
A. I don't know the time I was awoken. It was night-time. It was definitely night-time.
Q. Are you able to say whether it was light or dark outside?
Q. What about you; do you remember what you had done that night before you went to bed?
A. I woke up and somebody was laying in my bed. I was facing the wall and I rolled over - because I had been awoken, I thought my mum must have got home from work, so I said her name. It was [the appellant] there. I felt him remove his finger from inside me and he told me that mum would be home soon and he left.
"Q. Can you describe what happened at Jeffries Street? Take your time. It might help if I ask you this: at Jeffries Street, was there one occasion or more than one occasion where something unusual went on?
Q. You've described sexual touching occurring at Sutcliffe Street. Was there more sexual touching at Jeffries?
Q. Are you able to say on how many occasions [the appellant] touched you at Jeffries Street?
A. At the start, not as many, but sort of as time went on, it became a more regular thing; at least a couple of times a week.
Q. This occurred when you were aged about 11, do you think?
A. Up until then, yes. Like I said, a regular thing.
Q. Over what period of time did this occur regularly?
A. Like I said, it started - I don't know when it was that it started. We moved, I just sort of noticed it started to happen more and more.
Q. Can I just check your school year. I think you said you moved to Jeffries Street at the beginning of '89; that's right, from your memory?
Q. Either by referring to your grade or your age, can you tell us how old you were while this occurred regularly, or what grades you were in at school?
Q. Can you give us some detail about the things that happened to you at Jeffries Street?
"Q. Do you remember what she told you about what happened at Sutcliffe Street. You have used the words 'interfered with'; do you remember her words?
A. She told me that he used to go into her room at night-time and touch her.
Q. Did you infer from that that it was sexual touching?
Q. Did you speak to [the appellant] about that in early 2002?
A. When [the complainant] told me, [the appellant] wasn't home at the time. I was very upset, so I phoned him. I was yelling at him over the phone. He told me not to scream because he was sitting near people in a bar and they could hear what I was saying, so I said 'You'd better come home', which he did. He came home.
Q. What did you say to [the appellant] when he came home?
A. I asked him about all the things that [the complainant] had told me. He said 'We've already gone through all this' and I said 'No, not' - 'I didn't know about all this previous'.
Q. Do you remember whether or not you mentioned Sutcliffe Street to [the appellant]?
Q. What did he say about events at Sutcliffe Street?
A. He told me that he'd already - that it was already sorted out and worked out between us, that I'd already known about that, and I said 'No, I only knew about the incident in Jeffries Street', and he said 'No', he said 'It's already discussed', and I said 'Well, [the complainant] can't get over this', and he said 'Tell her to come around any time she likes and I'll talk it through with her and I'll try to help her through it'."
"In grappling with this submission I need to remind myself about the admissibility of the evidence here involved. [The complainant] said in evidence that in 1991 she complained to her mother in the following terms:
'I told her that [the appellant] had been touching me'.
She explained that she told her mother it was sexual touching. She was not cross examined about this. What she said, on its face, cuts across [the submission of counsel for the appellant at trial] ... because it implies more than one incident of sexual impropriety at Jeffries Street. As to the content of the second complaint to her mother concerning what happened at Sutcliffe Street in early 2002, there was no evidence directly from [the complainant].
As a matter of strict principle the content of [the complainant's] complaints to her mother, both as to the truth of them and also as to the fact of them, are inadmissible. Firstly, the fact of what was said by [the complainant], either from her or from her mother, cannot be received by me as evidence going to her consistency and credibility because the complaint is not a 'recent complaint'. Further, the contents of the complaints, as deposed to either by [the complainant] or her mother, cannot be received for their truth because to do so would offend against, respectively, the rule against self corroboration and hearsay.
So is it the case that in weighing up the submission I am confined to considering only what [the complainant's mother] says was the content of the complaint?
In my view, this is unfair to the witness whose credit is being impugned, namely [the complainant]. The submission is effectively a plea that I should use the statements made by [the complainant] as deposed to by her mother as prior inconsistent statements without the witness whose credit is impugned thereby, namely [the complainant] being given an opportunity to address the alleged inconsistency.
Further, I was told by counsel for the Crown ... that the content of the statements of complaint were before me only to make sense of the alleged admissions of the accused."
There then followed this paragraph which betrays a misapprehension as to an accused's position and obligations in a criminal trial[14]:
"I think if the Defence wish to impugn [the complainant] in this way then what is put to the tribunal of fact as achieving this should also have been put to her. I say this conscious that the accused bears no overall onus. However, serious unfairness to the complainant arises if the technical view of the rules of evidence are applied as I have suggested."
"Having said all that, resolving this difficulty is unnecessary in this case because it is my view that this submission is only marginally compelling for the following reasons.
That [the complainant] conveyed to her mother in 1991 only that the accused attempted to have sexual intercourse with her at Jeffries Street when her evidence alleged other sexual activity, whilst inconsistent is neither inexplicable nor alarming. After all, [the complainant] was then only 12 or 13 years old. She had on her evidence tolerated an ongoing regime of sexual touching commencing in 1987 and increasing in frequency. However, the single activity which immediately preceded the complaint was the first time she had been hurt by the accused when he attempted to insert his penis into her vagina. It was the last time on [the complainant's] evidence that the accused had sexually abused her. She said it 'hurt a lot' so much so, for the first time in her encounters with the accused, she cried and pushed him away. So it is little wonder she reported that to her mother. Indeed, [the complainant's mother] said that [the complainant] was 'scared' when she came to her. The fact that [the complainant] volunteered no further information about the alleged long history of abuse is again not surprising. It is not unreasonable to infer that she could not tolerate this new hurtful abuse. Further, her mother did not seek further detail from her. In my view, there would be an understandable reluctance on the part of the child to volunteer the long history of distasteful happenings to her mother who plainly liked the accused. As to the 2002 complaint, I consider that the witness [the complainant's mother] was, in recounting that episode, concerned not so much with the details of what was alleged to have happened, but the place where it happened, namely Sutcliffe Street. Further, to find that the Crown case was fundamentally flawed in the way contended for would be to give to the evidence fuelling the submission a cogency which is simply not warranted by the hesitant way in which it was treated by both Crown and Defence counsel.
Then [counsel for the appellant] asked why in 1991 the 13-year-old [complainant] did not make full disclosure to her mother but only complained of attempted sexual intercourse. Again, I do not regard that as a compelling indication of unreliability. I repeat that [the complainant's mother] neither sought nor waited for any detail but immediately went to confront the accused. It is probably not without significance that the last offence on [the complainant's] evidence hurt her. [The complainant's mother], I accept, was in love with the accused. This was plainly not welcome news to her and [the complainant] must have been aware of that." (Original emphasis)
"I am convinced, based on my acceptance of [the complainant's] evidence, and the evidence of her mother, that the offending did take place and at Sutcliffe Street. However, placing it within the period charged, namely 7th July 1986 and 31st December 1987, is not possible, at least with any conviction, given the necessity to do so beyond reasonable doubt and bearing in mind the warning. If I was convinced that it was a single occasion at Sutcliffe Street, then I would have entertained an application to amend to widen the charge period; but I am not so convinced, based on [the complainant's] reserved response to whether there was only the one occasion of improper touching at Sutcliffe Street. So, Count 3 is not proved beyond reasonable doubt." (Original emphasis)
"I am satisfied that the Crown have proved beyond reasonable doubt Counts 4, 5 and 6. Necessarily I am convinced that there is no reasonable possibility that the accused's denials of the offending are true.
It is not incumbent upon me to identify the central evidence upon which I act and the basis upon which I prefer the evidence of [the complainant] and [the complainant's mother] to that of the accused[18]. What I have said of the Defence contentions indicates some of my views. Further to that, I indicate that the evidence of [the complainant] and [the complainant's mother] had a cohesive consistency about it and a clear ring of truth to it. The admissions by the accused were an important part of the Crown case and were important to my considerations. [The complainant's mother's] evidence of the 1991 admission was not only itself convincing but also it was supported by the fact of and the circumstances surrounding the aborted trip to Mildura. The accused was driven, falsely, to claim that the trip to Mildura was motivated by [the complainant's mother's] wish to review their relationship, rather than a conviction, given the admission that her daughter's complaints were justified. I accept [the complainant's mother's] retort that the relationship was otherwise good in 1991. The engagement supports all that. She said there had been previous talk of marriage. Again the accused denied, falsely, that the confrontation in about March 2002 was about [the complainant's] further allegations of sexual misconduct at Sutcliffe Street but claimed it was about [the complainant's mother's] disenchantment with the property settlement. Again, I accept the evidence of [the complainant's mother] that such was not the case. The sudden angry summonsing of the accused from the hotel does not fit in with this. [The complainant's mother] said, and I accept it, that whilst the break up was not pleasant she left on 'good terms'. Certainly, whilst the understandable anger provoked by the accused's infidelity and perhaps even the property settlement was capable of providing a motive for a false accusation, what emerged from the accused's evidence and the cross-examination of [the complainant] and [the complainant's mother] failed to establish as a reasonable possibility that provoked by such matters [the complainant] and her mother fabricated the allegations. Indeed, the responses of [the complainant] and [the complainant's mother] to the penetrating cross-examination served to reinforce my views about the cogency of the Crown case, given the need for careful scrutiny.
Finally, I accept that a witness's demeanour can be an elusive aid to credibility and reliability. However, after the most careful scrutiny I am satisfied that both [the complainant] and [the complainant's mother] were patently credible and save for the matters addressed by me in relation to Count 3 they were reliable."
The appeal to the Court of Criminal Appeal of South Australia
"I agree with [counsel for the appellant's] submission that the defence was entitled to rely on the inconsistency between [the complainant's] evidence about [the appellant's] conduct and her complaints, and [the complainant's mother's] evidence about the complaints. The fact that the evidence of the complaints was led from [the complainant] merely to explain [the complainant's mother's] response does not mean that the evidence of [the complainant's mother] cannot be used to weaken [the complainant's] evidence, or [the complainant's mother's] evidence.
The evidence by [the complainant's mother] about [the complainant's] complaints is evidence of statements by [the complainant] inconsistent with her evidence about [the appellant's] conduct. The defence was entitled to rely on those inconsistencies to attack [the complainant's] credit.
The fact that the inconsistencies were not put to [the complainant] was something to be taken into account in assessing the weight to be given to the inconsistencies. It was open to [counsel for the appellant] to have [the complainant] recalled for further cross-examination. She did not do that. The consequence is not that the inconsistency should be ignored, it is that the failure to put the inconsistency to [the complainant] that has to be taken into account[20].
I consider that the Judge erred in deciding that [the complainant's mother's] evidence could not be used as evidence of statements by [the complainant] inconsistent with her evidence at trial."
"In the end the challenge to the Judge's verdicts comes down to the fact that in deciding that the inconsistencies between [the complainant's] evidence at trial about [the appellant's] conduct and her evidence and that of [the complainant's mother] about her complaints, the Judge did not identify and deal with all aspects of the inconsistencies. The same applies in relation to the Judge's consideration of [the complainant's mother's] evidence of admissions by [the appellant]. But that has to be balanced against the fact that the Judge dealt with a number of aspects of the inconsistencies, and clearly was persuaded by other matters upon which he was entitled to rely. The Judge wrongly treated the failure to cross-examine [the complainant] as precluding the use of the inconsistencies to impugn her evidence. But as to that my view is that if one accepts that the inconsistencies were explicable in a manner that did not provide a basis for them to reflect on [the complainant's] credit (as the Judge actually decided), there is nothing of significance in the point."
"The ultimate question is whether the failure of the Judge to consider all aspects of what I will call the inconsistency argument has given rise to a miscarriage of justice. The matter can be put in three different ways. First, has it resulted in the Judge failing to consider a significant aspect of the defence case? Second, is there a real risk of the Judge having been led into error in his ultimate conclusion by his failure to consider the relevant matters? Third, if the Judge had summed up to the jury along the lines of his reasons, raising only the matters that he identified in his reasons, would the Court conclude that the jury had been misdirected?
I agree that the inconsistencies were a significant aspect of the defence case. But I am satisfied, in the end, that the Judge has considered the substance of the defence case on this issue. [Counsel for the appellant] rightly identified aspects of the argument to which the Judge has not referred, but assessing the Judge's reasons as a whole I consider that he has sufficiently dealt with this aspect of the defence case.
As to the second question, I do not agree that the matters that the Judge failed to deal with are of such significance that there is a real risk of the Judge's ultimate conclusion being flawed. Once again, reviewing the Judge's reasons as a whole I am satisfied that his conclusion could not have been affected by the aspects of the argument to which he did not refer.
As to the third question, bearing in mind that it is not necessary for a judge to spell out to the jury all aspects of the factual issues that they have to decide, I am not persuaded that a direction to the jury that brought to the jury's attention the matters that the Judge dealt with, and did not refer to the aspects of the submissions that he overlooked, would be an erroneous direction on the facts.
For all those reasons I consider that the omissions in the Judge's reasons are not sufficient to lead to the conclusion that the verdict should be set aside. The appeal should be dismissed."
(1) Subject to this section, where, in a criminal trial before the Supreme Court or the District Court -
(a) the accused elects, in accordance with the rules of court, to be tried by the judge alone; and
(b) the presiding judge is satisfied that the accused, before making the election, sought and received advice in relation to the election from a legal practitioner,
"The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred." ↑
MWJ
The Queen
[2004] SASC 345
[2004] SADC 75
(1990) 19 NSWLR 677
(1989) 54 SASR 17
(1979) 143 CLR 575
(2000) 78 SASR 68
(1959) 101 CLR 298
(2000) 199 CLR 620
(2002) 210 CLR 285
Appeal dismissed.