27 I put to one side for the moment the complaint about comments (1), (2), (3), (4), (11), (13) and (14). They are all concerned with evidence of complaint and distress and therefore are better dealt with under the heading of the second part of the applicant's contention. As far as I can see, however, there is not much wrong with the remainder.
28 There is nothing objectionable about comment (5). The judge was simply outlining the essence of each side's case and at that point summarising the Crown's contention.
29 Equally, I see nothing amiss with comment (6). It was part of a conventional direction as to the way in which the jury should approach the evidence of an accused who chooses to give evidence. It may be that it went some way to assisting the prosecution. But that does not mean that it was improper. A woman giving evidence about a sexual offence committed against her is likely to be under more stress than most other prosecution witnesses. That is something which a jury should properly take into account in assessing her testimony and therefore something which a trial judge may properly point out to the jury. In a case of this kind, which was essentially oath against oath, it was appropriate for the judge to point it out at the same time as his Honour drew attention to the predicament of the applicant.
30 Comment (7) appears to me to be unremarkable. The judge was simply making the point that in assessing which account was to be preferred, the jury might care to take into account the circumstances in which the applicant and the complainant worked together and the level of contact which they had had with each other. With respect, that was both a logical and even handed thing to say.
31 I see nothing wrong with comment (8). It makes the obvious and valid point that the choice for the jury was between rape and consensual sexual intercourse, and that, in the particular circumstances of this case, the choice could not be rape unless the jury were satisfied beyond reasonable doubt that the complainant was telling the truth. Such a direction or comment was in accordance with the judge's obligation to identify the issues for the jury and to relate them to the evidence. In any event, it was favourable to the applicant since, strictly speaking, the jury could be satisfied beyond reasonable doubt that it was rape without being satisfied beyond reasonable doubt of the accuracy of the complainant's testimony.
32 I doubt that comment (9) is accurately transcribed. As written, it suggests that the jury should disregard the objective evidence of consent or lack of it and decide the case simply on the basis of an assessment of the truth of what the applicant and the complainant had said about the matter. So to direct would have been flatly inconsistent with the directions earlier given that the jury should have regard to context and evidence of complaint and distress.
33 Comment (10) is unexceptionable. It is part of a conventional warning to the jury that, while it is for the judge to endeavour to relate the evidence to the issues in order to assist the jury, it is for the jury as the judges of the facts to determine what evidence they think to be significant, and that anything which the judge identified as being significant was neither binding nor necessarily accurate.[11]
34 I accept that comment (12) was unfavourable to the applicant and that it appears to have been made at a point in the summary of the evidence which was calculated to achieve maximum prejudicial effect. In my view, it would have been better left unsaid. As Eames, J.A. recently observed in Ivanovic,[12] it is the practice of trial judges in Victoria to avoid comments on the facts lest they be taken by the jury or by observers at the trial as reflecting the judge's opinion as to where the truth may lie and thereby appearing to usurp the function of the jury or unfairly to tip the scales toward a particular outcome.[13] But, that said, I am not satisfied that comment (12) amounted to appealable error.
35 I see nothing wrong with comment (15). Taken out of context, it might suggest that the judge gave inadequate attention to the accused's evidence compared to the treatment his Honour accorded to the evidence of the prosecution witnesses. But the judge went on after making the comment to give a detailed summary and analysis of the accused's testimony.
36 Comment (16) is equally anodyne. It was part of a conventional direction that the jury were not to read significance into any perceived difference in weight or emphasis put on the Crown case as compared to the defence case. In the course of oral submissions, counsel for the applicant submitted that the treatment which the judge accorded to the defence case was inadequate because it failed to make anything of concessions said to have been extracted from the complainant in the course of her cross-examination. But, as counsel for the respondent submitted, there were no concessions of any significance, simply rejection of the cross-examiner's propositions, and the judge ensured even handedness by saying nothing about the denials except for the denials of the puttage.
37 Finally, on this part of the matter, there is comment (17), which so far as I can see is simply part of the judge's summary of the way in which the Crown put its case. The judge was required to summarise the Crown case, as he was the defence case. His Honour did both, and in my view there was nothing wrong with either.
38 That leaves comments, (1), (2), (3), (4), (11), (13) and (14) about which I consider that there is cause for concern. Comments (1) and (2) appear on the same page of the transcript as part of more comprehensive directions as to the use which may be made of evidence of distress[14] and complaint[15] in sex cases. In effect they roll up the notions of evidence of complaint and evidence of distress as if they were parts of the same thing (albeit that, later in the charge, the judge drew a distinction between the two kinds of evidence and instructed the jury, correctly, that evidence of complaint can go only to consistency and therefore to credit whereas evidence of distress is capable of being used as evidence of fact). The applicant's real complaint about comments (1) and (2), however, is about the judge's observations that "the distress evidence and the complaint evidence assume[d] quite some significant importance in this case" and that "the distress evidence and the complaint evidence in the light of the factual issues ...assumes greater significance in this case". In counsel's submission there was no justification for those observations and the effect of them was to accord to the "distress evidence and the complaint evidence" a significance which they quite clearly did not warrant.
39 Comment (11) is different in that it did not employ the descriptions "distress evidence" and "complaint evidence" but rather prefaced reference to a large tract of the complainant's evidence which the jury may have understood to be complaint evidence. Counsel for the applicant submitted that it too had the effect of overstating the significance of that evidence.
40 Comment (13) is analogous to comments (1) and (2), since it repeated and emphasised in terms that "the evidence of distress and evidence of complaint had assumed some significant proportion in this case". But it went further by explaining that the reason why such evidence could be regarded as being of "significant proportion" in this case was "because of the number of people who have given such evidence and the nature of what they say". In counsel's submission, there was no justification for that comment. There was nothing about the number of people who had given complaint evidence or distress evidence which was properly to be regarded as exceptional or otherwise affording the distress evidence and complaint evidence greater significance than in any other case. In counsel's submission, the comment repeated and exacerbated the effect of overstating the significance of the distress evidence and complaint evidence.
41 Finally, there is comment (14) which, although not as graphic, also emphasised the significance of the distress evidence and, as counsel for the applicant would have it, accorded it a degree of significance which it did not warrant.
42 In my view there is force in the counsel's criticisms of the way in which the judge dealt in those comments with the evidence of distress. Although evidence of distress is capable of corroborating a complainant's testimony, authority suggests that it generally carries little weight and as a matter of prudence juries should ordinarily be warned of its inherent limitations.[16] The need for such a warning is also likely to increase where, as here, the observation of the complainant's distressed condition is made at some time after the incident, is equivocal and could have been the result of incidents which did not form part of the charge.[17]
43 One gleans from comment (9) that the judge thought that the evidence of distress was significant "because of the number of people who have given such evidence and the nature of what they had to say". But in truth that was not so. There were only two witnesses who gave it - Abdul Ansar and Bakre Hassan - and it was not particularly compelling.
44 Abdul Ansar's testimony was that he worked as a contract cleaner at the Royal Melbourne Hospital and at The Avenue Hospital and that the complainant was in the habit of giving him a lift from the Royal Melbourne to The Avenue after they had finished work at Royal Melbourne. He said that he saw her at about 12.30 a.m. and asked her how she felt, at which time apparently he perceived that there was nothing out of order. Later at around 2.00 to 2.30 a.m., after he finished his work, he went to the ground floor and he saw her there and said that his perception then was that there was a change in her face, as he put it: "Her talking was different and her face was a bit reddish". But he said that he spoke to her and she gave him the keys to her car so that he could sit in it until she was ready to travel to The Avenue, and there was nothing more to it than that. Then, 15 or 20 minutes later, when she came to the car, he said that she was crying. But he said that when he then asked her what the matter was, she did not reply. Instead she drove him to The Avenue, seemingly without further comment. Ansar said that he next saw the complainant after he finished work at The Avenue at about 4.00 to 4.30 a.m., at which time she seemed different. As he put it: "It was not normal, it was completely different to what she appears before." But when he asked then what her problem was, she replied that: "I have no problem", and then she drove him home.
45 Bakre Hassan, who was a supervisor of cleaners, said that he saw the complainant at The Avenue Hospital on the night in question at around 1.45 am. But it is to be assumed that he was wrong about the time, given that Ansar's uncontradicted testimony was that he and the complainant did not leave the Royal Melbourne Hospital until after 2.00 a.m. More probably, it was a good deal after 2.00 a.m. when Hassan first saw her. He said that when he saw her, her face was red and she looked as though she had been crying. According to him, he said to her in jest: "Don't tell me you lost money again". She replied: "It's nothing to do with money, it's a private matter". As far as can be told, she did not say anything else.
46 A third witness, a nurse, gave evidence that she was present on the seventh floor of the hospital (as it happened only a short while after the applicant and the complainant had had intercourse in the basement) and heard the complainant tell the applicant to come to the first floor and heard the applicant reply: "later". She also said that at about 12.50 a.m. she took a break in the visitors' room and then heard raised voices, and the applicant say: "I'll do it later". But apart from that, she said that there was nothing which indicated to her that there was anything amiss or out of the ordinary. I do not regard that as being capable of constituting evidence of distress.
47 Even allowing that Ansar's and Hassan's evidence was capable of corroborating the complainant's testimony,[18] it was at best equivocal. In the circumstances, the judge should have at least told the jury to examine the effect of the evidence very closely before treating it as corroborative and even then to proceed with care. His Honour should also have told the jury that the nurse's evidence was not evidence of distress and if anything that it tended to point to a lack of distress immediately after the event. But as has been seen, instead of doing that the judge in effect commended the evidence of all three witnesses as particularly strong and important or at least as something significant upon which the jury could rely. With respect, it plainly did not warrant that sort of description.
48 In my view there is also force in the counsel's criticisms of the way in which the judge dealt with the evidence of recent complaint.
49 The complainant's husband gave evidence that he spoke to the complainant the next morning and that he had sexual intercourse with her then, albeit that she seemed reluctant and at first not prepared to participate. He said that he thought her mood was very low. Later, after the complainant's mother asked the complainant if she had any clothes for washing, he followed the complainant to the laundry where he saw her take her trousers out of the washing basket and throw them into the rubbish bin, and then return to bed and climb in under the covers. There followed two hours of intense questioning in which he endeavoured to coax out of her what it was that was wrong with her, and that culminated in her telling him that the applicant had wanted to have sex with her but that she had refused him.
50 Paul Michael Allen gave evidence that he was the manager of the cleaning company for which the complainant worked and that on the afternoon of Saturday 24 May 2003 he received a telephone call from the complainant in which she broke down hysterically, started crying and then related how she had gone to the basement and then that the applicant had "fucked" her.
51 It is trite that, in order to constitute evidence of recent complaint,[19] the complaint must relate to the sexual character of the offence alleged and it must disclose relevant sexual conduct by the accused which supports the credibility of the complainant.[20] In my view, the complainant's report to her husband failed that test. She told her husband that she did not have sexual intercourse with the applicant and that does not support her testimony that he raped her by penile penetration.
52 It is also well established that the complaint must be made at the first reasonable opportunity, or as speedily as can be expected in the circumstances of the case, and it has been held that that remains the rule despite the provisions of s.61(1)(b) of the Crimes Act.[21] Given the delay which was involved, it is to be doubted that the complaint to Mr Allen satisfied that test.
53 It appears that defence counsel was glad to have the complaint evidence in evidence - in order to show up inconsistencies as between the complainant's several complaints, and thus to throw doubt on her credibility - and, as the applicant's counsel fairly conceded, that forensic decision put paid to any argument that the judge was in error in admitting the evidence. But admission of the evidence is one thing, and the way in which the jury may use it is another, and plainly defence counsel's decision not to oppose the admission of the evidence is not an answer to criticism that the judge erred in the way in which he directed the jury that they might treat the evidence.[22]
54 In point of fact, the evidence of complaint was of even less weight than the evidence of distress. It was admissible only for the purpose of buttressing the complainant's testimony - by demonstrating consistency in her conduct and consistency of her evidence[23] - not as evidence of distress capable of corroborating her testimony. It was therefore incumbent on the judge to point that out to the jury[24] and unfortunately he failed to do so.
55 As has been seen, to begin with, the judge in effect conveyed the opposite by referring to the evidence of distress and evidence of complaint as if they were two parts of the same thing carrying equal weight. Later, after exception had been taken, his Honour attempted to overcome the problem by directing the jury in conventional terms as to the difference between evidence of distress and evidence of complaint (and thereby emphasising that complaint evidence was not evidence of the offence but only of consistent behaviour on the complainant's part touching upon the truth of what she had to say, whereas distress evidence was objective evidence consistent with the complainant having suffered the offence). But having done that the judge then launched back immediately into comments (13) and (17) of which the substance was that it seemed to the judge that "the evidence of distress and evidence of complaint has assumed some significant proportion in this case, because of the number of people who have given such evidence and the nature of what they had to say". The result was substantially to undermine the effect of the re-direction.
56 It is to be noted that defence counsel did not take a further exception to the re-direction. But in this case I do not think that makes any difference. It could not have been the result of a forensic decision. More probably, defence counsel took the position to be sufficiently preserved by his original exception or alternatively he simply missed the point. Either way, in my view, it should not be held against the applicant.
Miscarriage of justice
57 All things considered, I conclude that there has been a miscarriage of justice. The applicant was entitled to the benefit of directions that this was a case of oath against oath and that, while the evidence of distress was capable of corroborating the complainant's testimony and the evidence of complaint was capable of demonstrating consistency, the content of the evidence in each case was at best equivocal and needed to be closely scrutinised. Instead of directing the jury in that fashion, the judge repeatedly expressed his own opinion that the evidence in each case was particularly significant and in effect was the sort of evidence which the jury could use in order to be satisfied of guilt. The fact that he qualified this repeatedly expressed opinion by saying that it was only his comment was not, I think, an adequate antidote in all the circumstances. Thus the jury retired to their deliberations on the basis of erroneous directions as to matters which, because of the stress laid upon them by the judge, were likely to be critical. For good measure, the judge added in his own cross-examination of the applicant designed to expose the applicant's motive for lying to the police and the prejudicial effect of comment (12).
58 It is by no means unrealistic to suppose that, but for the judge's directions as to distress and complaint, the verdict could have been different. It follows in my view that a new trial should be had.
Conclusion
59 For the reasons which I have given, I would allow the application for leave to appeal and treat the appeal as having been instituted and heard instanter. The appeal should be allowed and the conviction quashed and it should be ordered that a new trial to be had.