R v Brdarovski [2006] VSCA 231

"Well on his [the applicant's] account, he's been having sex with one of his workmates...He's been having sex with her on a number of occasions, for money, on his work hours, on the premises, over a period of months. He lied to the police. He now has come up with another account and he throws in for good measure Abdul. Now, the only source we've got of any Abdul story is him, the same man. He didn't mind doing it, on his account, and just taking his account and just, for one moment, take him at his word. He says all that happened. He had to protect his wife. Mr Brdarovski has the problem we'll never know when he's telling the truth. He denies it ever happened, then he turns around, well, it happened, happened repeatedly, somebody else was involved in it and that's all over $20."

7 Similarly, in the charge to the jury, the only reference which the judge made to the applicant's lies as such was as follows:

"I will not refer to the record of interview because you have heard it played, you have had a transcript in front of you and you will have that in your retirement. But of course the substance of what the accused man said when being interview[ed] as is accepted by his counsel and by the accused was that he denied that any sexual activity had taken place and that there had been any visit to the basement or any sexual activity between them."

8 Certainly, the judge questioned the applicant about the applicant's false denial of intercourse with the complainant. Furthermore, as counsel for the applicant submitted, it appears from the section of the transcript which is set out below that the judge's objective in undertaking that exercise was to demonstrate that the applicant was not prepared to admit intercourse until he was informed by police that his DNA had been found on the clothes the complainant said she was wearing on the night of the offence. Thus:

"HIS HONOUR: Mr Brdarovski, you're aware that - you provided a sample which was a swab from your mouth to the police when they requested it. Is that correct? --- Yes.

At some stage you were told, were you, that that sample had been analysed and with other tests that have been conducted it established that you had had sex with this lady? --- Yes.

When were you told that? I don't want to know what was said. I just want to know when that was said? --- When I had an interview at the Sunshine Hospital - at Sunshine Police Station.

The sample was taken on 25 May, the day of the interview. Is that right? --- Yes, about 4 o'clock in the morning.

So some time after that you were told of the results of that testing of that sample? --- No.

It would have been some weeks or months after that date, 25 May. Is that right? --- I remember when I went to the police station in Carlton they told me they had the results. That was after a few months, yes.

After a few months? --- Before I went overseas on holidays.

Was it 2003 or 2004? --- I think it was 2003.

When did you go overseas? --- In February I went alone to visit my father who was very sick and he died. Then I came back and then in June I went with all of my family.

This is 2003, is it? --- Yes.

So you went with the family in June 2003? --- Yes, my family was here.

The interview was only on 25 May 2003, so you went overseas just a few weeks after that interview, was it? --- The interview with the police?

Yes? --- Yes.

Do you say that you got the results or you became aware of the results of the scientific exanimation, the DNA examination, before you went overseas? --- Before I went overseas I went to the police and I asked them if they'd have the results of my DNA testing and I think they said, 'Yes'.

Were you told what those results were at the time? --- No.

Is that when you went overseas, after you had that information? --- Yes.

At some stage you must have been told of the results of the DNA testing? --- They said something that there is positive results but I don't remember.

I'm not asking you about what you were actually told. I'm interested to know when you were told that? ---Before I went overseas.

How long were you overseas? ---10 weeks.

So you went to the police station first of all and you were told the results had been obtained, but you weren't told what those results were. Is that right? --- Yes, I didn't know, yes.

How much later, how long after going to the police station and being told that, did you become aware of what the results were? --- I don't remember.

By whom were you told that, by your solicitor, or by a policeman, or who? --- First, I went to the police. My friend who is sitting outside, he came with me. They said, 'Yes, there is some result. The solicitor is going to talk to you about it.'

You did speak to the solicitor about that, you say before you went overseas? --- I don't remember. I think no.

What do you mean by that? It might have been after you came back from overseas? --- Yes.

So you think now that it might have been when you came back from overseas? --- Yes.

You went over in June. You came about October, November, did you, last year? --- After 10 weeks.

Do you remember how long after you came back from overseas it was that you found out that the results were positive? --- I don't know."

9 It may also be true, as counsel for the applicant submitted, that the judge's line of questioning could have led the jury more readily to conclude that the applicant lied because of consciousness of guilt.

10 But the sort of reasoning which could lead the jury to that conclusion can hardly be regarded as obvious. Whatever the applicant's motivation to lie, the most that the judge's questioning established was that the applicant's reason for abandoning the lie was his recognition that it had become unsustainable in light of the DNA evidence. Logically, the fact the applicant was so forced to abandon the lie was no more consistent with the lie being the result of consciousness of guilt than borne of panic or fear of false attribution of blame or the consequences of his adultery being discovered. Common sense and ordinary human experience suggest the same conclusion.

11 In any event, it appears from the transcript that the jury did not regard the judge's questions as connected with any notion of consciousness of guilt. As will be seen, their interest in his Honour's questions lay in whether the applicant's answers did anything to establish that the applicant's DNA was on the trousers which the complainant said she was wearing at the time of the offence. According to her testimony, the applicant broke the zipper as he forced the trousers open. But according to the applicant's testimony, the complainant was wearing an elasticised garment without zippers and there was nothing forced about their removal. Hence the jury's interest. If the applicant's DNA were on the garment with the broken zipper, it would be more likely that the zipper was forced and that the intercourse was not consensual. Conversely, if the applicant's DNA were not on that garment, it would be more likely that the applicant was telling the truth and that the intercourse was consensual.

12 Close to the end of the prosecutor's cross-examination, after the prosecutor asked the applicant whether he was aware that he had broken the zipper, the jury asked to see the garment and they took time to inspect it. The foreman then announced that they would defer a question which they had previously said they wished to ask. The remainder of the prosecutor's cross-examination of the applicant was short. After one brief character witness the judge announced to the jury that they had heard all the evidence which they were going to hear in the case. That then resulted in the following exchange:

"FOREMAN: As yet we haven't actually had the positive results of the DNA confirming that the nappy and the black pants in evidence have confirmed semen.

HIS HONOUR: That is true, that evidence has not been placed before you. That is the state of the evidence.

FOREMAN: Can I say more?

HIS HONOUR: Yes.

FOREMAN: It's not been confirmed that they are the pants and it hasn't been confirmed that they have got - - -

HIS HONOUR: There is evidence identifying the pants from the witness [complainant] who identified her own clothing as being clothing she was wearing on the occasion. So in that sense the pants have been identified and confirmed, but it is true that the DNA evidence has not been put before you.

FOREMAN: Is that normal or is there a reason for that?

HIS HONOUR: I cannot comment further than that. I can only comment upon the state of the evidence.

FOREMAN: It just seemed to be a stumbling block for us that we seem to have a difference between the pants that were identified and the ones in the bag [the exhibit].

HIS HONOUR: I understand that, there is evidence from the witness [complainant] that they are the pants that she was wearing and the accused has given evidence that she was wearing something else. That is the state of the evidence at the moment and that is the only evidence before you, if that is a conflict then it exists on the evidence. That is all I can say.

FOREMAN: Can I say a further question?

HIS HONOUR: Yes.

FOREMAN: Can you say whether there was a confirmed DNA of the accused on the black pants?

HIS HONOUR: There is no evidence of that before you.

FOREMAN: Thank you."

13 If I may say so with respect, at that point it may have been preferable for the judge to direct the jury in accordance with Zoneff that they were not to reason that, just because the applicant was shown to have told lies about having had intercourse with the complainant, it was evidence of guilt of rape. To do so would have removed all risk of the jury adding consciousness of guilt to the processes of reasoning on which the Crown relied.[4] That said, however, the judge was an experienced criminal trial judge and hence it may be assumed that, if his Honour had perceived there was a real danger of the jury treating the applicant's lie as evidence of consciousness of guilt, he would have given such a direction. It may also be assumed that, if defence counsel had perceived such a risk, he would have asked for a Zoneff direction. The fact that he did not amplifies the improbability of the jury reasoning impermissibly.[5]

14 Of course, there are cases in which there is a significant danger of the jury reasoning by reference to consciousness of guilt, despite that the Crown has not suggested that they should and that no exception is taken. R. v. Nguyen[6] and R. v. Chang[7] are recent examples. But the facts of this case are different to those. While it may not be impossible to exclude completely the risk that some jurors in this case used the lie as evidence of guilt, it would be an exercise in speculation to say that that occurred; and, plainly, it did not occur to any of those present at the trial, as opposed to those who now represent the applicant, that the risk warranted a warning.

15 Finally, it should be added that such a direction is unlikely to have helped the applicant. For as McHugh and Gummow, JJ. observed in Dhanhoa, by emphasising the issue such a direction may have made it difficult for the jury to disregard the issue.[8]

16 In the circumstances of this case, I am not persuaded that there is a reasonable possibility that the verdict would have been any different if the judge had given a direction concerning lies.

Ground 2 - Abandoned

17 Ground 2 of appeal against conviction was abandoned.

Ground 4 - Liberato direction

18 It is convenient to deal next with Ground 4. Under that ground, the applicant contended that the judge erred in failing to give the jury a Liberato[9] direction. I do not accept that contention.

19 The law is that when a case turns on a conflict between evidence of a prosecution witness and the evidence of a defence witness, it is essential to ensure by suitable direction that the answer to the question of who of them is to be believed, if adverse to the defence, is not to be taken as concluding the issues which the Crown bears the onus of proving. The jury must be told that even if they prefer evidence for the prosecution they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence and that even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue. But in this case, in my view, the judge did just that. His Honour expressly directed the jury that:

"Because at the end of the day there is of course a dramatic conflict between them [the complainant and the applicant] on the crucial element of the offence under consideration. It is your task to exercise a judgment about what you regard as the truthful account, it [sic] concerning them, bearing in mind as I hasten to add, that at the end of the day you have to be satisfied beyond reasonable doubt."

"...this is a case in which there is - or it might be said to be subject to that, a case where there is oath against oath. The accused man says one thing and [the complainant] says another and they are in direct conflict. The law takes the view that in cases where the[y] turn - if this one does turn, subject to what I have said, it does turn on the oath of a witness against the oath of the accused, that is the oath against oath, [t]hat special care is required on the part of a jury appreciating that the Crown case is so clearly dependent upon the evidence of [the complainant]. [P]articular scrutiny is required and a jury should exercise particular care before returning a verdict adverse to the accused and should appreciate that this is a case where there is an oath of [the complainant] on one side and the oath of the accused against on the other." (My emphasis.)

20 In my view ground 4 fails.

Ground 3 - Unbalanced and unfair trial

21 The applicant's third but logically last ground of appeal against conviction is that the trial miscarried because of the judge's cross-examination of the applicant about DNA testing. Alternatively, it is said that the charge was unbalanced because the judge made 17 comments which favoured the prosecution and none which favoured the applicant or, alternatively, because the judge gave disproportionate treatment and emphasis to evidence of complaint and distress.

22 I have to some extent already dealt with the judge's questioning of the applicant concerning DNA. But the thrust of the applicant's complaint about it for present purposes is a little different. It is contended that the judge's cross-examination of the applicant crossed the line into an impermissible foray into the forensic battleground and thereby caused the applicant substantial prejudice by emphasising the applicant's lie to the police.

23 With respect, I agree that the judge should not have questioned the applicant in the manner that he did. The applicant had admitted intercourse and the prosecutor had announced that he would not be tendering any evidence of DNA. The prosecutor had confined his questions about the lie to the issue of credit and had concluded his cross-examination leaving untouched the reasons for the applicant changing his story. It was not for the judge to create an issue where none existed.

24 In R. v. Esposito,[10] Wood, C.J. at C.L. made the point that the line which a trial judge walks when asking questions of a witness is a narrow one. As his Honour put it:

"... There is nothing wrong with questions designed to clear up answers that may be equivocal or uncertain, or, within reason, to identify matters that may be of concern to himself. However, once the judge resorts to extensive questioning, particularly of the kind that amounts to cross-examination in a criminal trial before a jury, then he is treading on thin ice. The thinness of that ice will depend upon the identity of the witness being examined (here the person on trial), and on whether the questions appear to be directed towards elucidating an area of evidence that has been overlooked or left in an uncertain or equivocal state, or directed towards establishing a point that is favourable or adverse to the interests of one or other of the parties."

25 Sometimes, it is a nice question whether a trial judge should ask any questions of a witness and if so how far they should go. At such points views are liable to differ. But, whatever differences in views there may be at the margin, there should be no doubts about the basics. It is not part of the functions of a trial judge to endeavour to fill gaps in a Crown case; nor to ask questions of an accused or any other witness in order to raise an issue which the Crown and the accused have left alone; nor to ask leading questions of an accused or any other witness in an endeavour to throw doubt upon the witness's credit, particularly if the witness is the accused. With respect, I consider that the judge's questioning of the applicant in this case crossed that line.

26 That leaves the contention that the charge was unbalanced because in the course of it the judge made 17 comments which were favourable to the prosecution and not one which was favourable to the applicant or because the judge gave disproportionate treatment and emphasis to evidence of complaint and distress. The 17 comments were as follows:

"(1) ...this is a comment, that doesn't bind you, it's a comment from me, it seems to me that the distress evidence and the complaint evidence assumes quite some significant importance in this case.

(2) ...it is a matter entirely for you, this does not [b]ind you, that would appear to me that the distress evidence and the complaint evidence in the light of the factual issues as they now have become firmly known to you, the distress evidence and complaint evidence assumes some greater significance in this case.

(3) The fact that in this case, it is my comment to you that it is a matter for you that there is of course that stark conflict between [the applicant] and the accused as to the circumstances as to what occurred on 24 May last year but there is other evidence which you may or may not regard as relevant to which I have already referred namely the distress and complaint evidence, which you may regard as material.

(4) ...there is an oath of [the applicant] on one side and the oath of the accused against the other. You are entitled if you see fit, to take into account the significance of other evidence in this case, in particular the evidence to which I have already referred, the distress and complaint evidence and the probabilities of the situation as you understand them to be.

(5) The Crown say that in respect of [the applicant] that she was a credible witness she had the demeanour and personality of a witness who was credible and ought to be accepted by you. That is a legitimate comment, which is open to the Crown but it is a matter entirely for you as to whether you accept that or not, it is not my task to make a comment as to whether she was credible or not credible.

(6) ...In that sense he [the applicant] is entitled to be treated as a witness like any other in the case, although because he is the accused and obviously he has more turning on the outcome of the trial you ought to bear in mind that he is under greater strain as a witness than any other, although I think it is a fair comment to say that many witnesses feel themselves under strain and in particular women who are required to give evidence of the [intimate] matters that [the complainant] was required to give evidence of in this instance.

(7) ...My comment is it would seem to [me] to be a possible factor to be taken into account given the general thrust of the two accounts that have been put before you.

(8) As I repeat [defence counsel] did not suggest that if you did accept her evidence there was any verdict open to you other than a verdict of guilty. And my comment is that that would make perfect sense. There is a dramatic difference between the two of them as to what occurred.

(9) ...So there is no need to subtly examine the objective evidence of a consent or knowledge of consent or absence of consent which has to be proved, as I will refer to in a moment.

(10) ...I have the task of drawing to your attention what seems to me to be the important evidence in the case. You have the task of making your own mind up as to what is the important evidence in the case.

(11) ...I will refer to the transcript of what [the complainant] said in that context. It seems to me to be important.

(12) ...I interrupt to make a comment that, in the course of his evidence, the accused man didn't say that the first occasion [on which he had sexual intercourse with the complainant] was in return for money. On the contrary, he said that it was just a few day after Christmas and no money exchanged hands, ...

(13) ...But it seems to me, and this is a comment that does not bind you, 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.

(14) ...it is entirely a matter for you to consider the weight or significance of the distress and complaint evidence in this case. I will refer to the evidence in the order in which those persons came into contact with [the complainant] on the day in question. The first one was Mr Ansar, Abdul, who assumes greater significance in light of the accused's evidence.

(15) What did the accused man say in the course of his evidence. I do not propose to go into it in great detail, members of the jury, but I want to emphasise that the fact that I do not provide the level of detail of the accused's evidence is because I believe you have a good indication of the substance of what he had to say to you and it is not evidence that requires the same level of detail.

(16) But I want to emphasis that simply because I spend less time on the defence case than I have in particular on [the complainant's] case does not involve any evaluation of the relative merit of the case at all, it is just because it is a much simpler case to understand, and to understand the thrust of the accused's evidence I do not believe requires the level of detail to which it was necessary to go in [the complainant's] case to understand the point of what she had to say.

(17) ...[the complainant's conduct after the offence] was consistent with a woman who was distraught and confused, and that in effect he was putting to you that the distress and complaint evidence was very significant in the context of this case."

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.

60 I agree with Nettle J.A, for the reasons which his Honour gives, that the application for leave to appeal against conviction should be granted, and the appeal allowed.

61 I agree with the orders proposed by the learned presiding judge for the reasons advanced by him.

- - -

[1] Edwards v. The Queen [1992] HCA 19; (1992) 173 C.L.R. 653.

[2] Zoneff v. The Queen (2000) 200 C.L.R. 234.

[3] Dhanhoa v. The Queen [2003] HCA 40; (2003) 217 C.L.R. 1 at 12 [34].

[4] Dhanhoa v. The Queen [2003] HCA 40; (2003) 217 C.L.R. 1 at 18 [61], per McHugh and Gummow, JJ.

[5] cf. R. v. Kumar [2006] VSCA 182.

[6] [2001] VSCA 1; (2001) 118 A. Crim. R. 479.

[7] [2003] VSCA 149; (2003) 7 V.R. 236, esp. at [6] and [48].

[8] Ibid at 19[63]-[64].

[9] Liberato v. The Queen [1985] HCA 66; (1985) 159 C.L.R. 507.

[10] (1998) 105 A. Crim. R. 27 at 56-57.

[11] Alford v. Magee [1952] HCA 3; (1952) 85 C.L.R. 437 at 466; R. v. Yusuf [2005] VSCA 69; (2005) 11 V.R. 492 at 499 [15]; R. v. De'Zilwa [2002] VSCA 158; (2002) 5 V.R. 408 at 416 [26].

[12] R. v. Ivanovic [2005] VSCA 238 at [36].

[13] Mule v. The Queen [2005] HCA 49; (2005) 221 A.L.R. 85, 79 A.L.J.R. 1573, 156 A.Crim.R. 203, which is cited in Ivanovic, ibid.

[14] R. v. Flannery [1969] VicRp 72; [1969] V.R. 586 at 591.

[15] R. v. Lillyman [1896] 2 Q.B. 167; Kilby v. The Queen [1973] HCA 30; (1973) 129 C.L.R. 460 at 466; Suresh v. The Queen [1998] HCA 23; (1998) 72 A.L.J.R. 769 at 773; Heydon, Cross on Evidence, Aust. Ed. at 17 279]

[16] R. v. Knight [1966] 1 W.L. R. 230 at 233; R. v. Flannery [1969] VicRp 72; [1969] V.R. 586 at 591; R. v. Yates [1970] S.A.S.R. 302 at 308-309; R. v. Roissetter [1984] 1 Qd. R. 477 at 482; Heydon, Cross on Evidence, 3rd Aust. Ed. at [15 195]

[17] Cf. R. v. McDougall [1983] 1 Qd. R. 89 at 91; R. v. Gallagher (1986) 41 S.A.S.R. 73 at 76-77; R. v. Danine [2004] QCA 102; (2004) 145 A. Crim. R. 278 at [14].

[18] R. v. McK [1986] 1 Qd 476 at 481; cf. R. v. Richards [1965] Qd. R. 354 at 357; Heydon, Cross on Evidence, Aust. 3rd ed_._ at [15195].

[19] For the purposes of the exception to the rule against self serving confirmatory statements.

[20] R. v. Braye-Jones [1966] Qd. R. 295 at 297; R. v. S [2004] EWCA Crim 1320; [2004] 1 W.L.R. 2940 at 2948 [25]- [26].

[21] R. v. Osborne [1905] 1 K.B. 551 at 561; cf. R. v. Munday [2003] VSCA 189; (2003) 7 V.R. 423 at 427 [20]; R. v. Knigge [2003] VSCA 94; (2003) 6 V.R. 181 at 191 [117]- [20].

[22] BRS v The Queen [1997] HCA 47; (1997) 191 C.L.R. 275 at 301 and 305-6.

[23] Kilby v. The Queen [1973] HCA 30; (1973) 129 C.L.R. 460 at 472 and 473-4; R. v. Freeman [1980] VicRp 1; [1980] V.R. 1 at 6-8; Suresh v. R. [1998] HCA 23; (1998) 153 A.L.R. 145 at 150[1998] HCA 23; , 72 A.L.J.R. 769 at 773.

[24] R. v. Stoupas [1998] 3 V.R. 645 at 652-3.