R v Brown [2000] VSCA 102

I have emended "appellant" to read "applicant" in the first three grounds.

15. It will be apparent from the verdicts and the grounds of appeal[1] that it is not necessary to set out all the unsavoury facts and allegations which the Crown sought to prove at the trial in order to understand counsel's submissions and to determine the application. The following condensed account is sufficient by way of introduction.

18. On the evening of 30th May 1996 the complainant met a female acquaintance known to her as "Jackie"[2] at a coffee shop in St Kilda. Jackie intended to work as a prostitute. The complainant agreed that, as a precautionary measure, she would record the registration numbers of the cars that Jackie entered. In return she would receive a percentage of the earnings. While she was so engaged, the complainant noticed a yellow Ford Falcon circling around the block and passing slowly in front of her a number of times. Eventually the vehicle stopped and the applicant, who was the driver, got out of the car. The complainant said that he ran around to her, opened the front passenger door, grabbed her by the hair and forced her inside.

21. The complainant also said that, after driving for about five minutes, the applicant grabbed her by the hair again and forced her head down on to his penis, demanding that she fellate him. She said that she complied with that demand and with a similar demand a few minutes later. Those allegations were the foundation of counts 2 and 3, on which the applicant was acquitted.

24. Eventually[3] the applicant stopped the car in either a residential street or a lane. He leant over her, wound her seat back and laid her back in the seat. After fondling her breasts he pulled her pants and underpants down and introduced his penis into her vagina. The complainant said that intercourse went on for about five minutes and that the applicant ejaculated. He said, "You have done well" and added, "I didn't mean to do this but I couldn't help it. I had to." The applicant drove the car to another street in the St Kilda area to drop the complainant off. Before letting her out, he uttered the threat the subject of grounds 1 and 2.

28. It is convenient to consider these grounds together. The complainant gave evidence of words that she said the applicant had spoken when he let her go:

"He said, 'I've done this type of thing before.' He said, 'If I see you in the Crown witness box, I will get bail and I will hunt you down and I will kill you.' He said to me, he said, 'I have done this type of thing before and I have got five years gaol for it.' He goes, 'If I see you in the witness box, I will hunt you down and I will kill you.'"

At the end of her cross-examination it was put to the complainant that the applicant had not threatened her, to which she replied, "[He] sure did, threatened to kill me if he saw me in the box."

33. In preliminary submissions counsel for the applicant had asked the judge to exclude evidence to the effect that the applicant had said that he had done that type of thing before and had got five years' gaol for it.[4] Although it showed the precise nature of the alleged threat and went to the issue of whether the applicant was aware that the complainant was not consenting or might not be consenting[5], counsel contended that it would be sufficient for the purposes of the prosecution if the complainant gave evidence only of the threat to find and kill her unembellished by the words that he sought to have excluded. Otherwise, it was said, the probative value of the material would be outweighed by its prejudicial effect. The judge rejected those submissions, saying that the evidence was relevant to the applicant's state of mind with regard to consent.

36. The applicant had not previously been convicted of rape or sentenced to five years' imprisonment, but he had been convicted on two charges of indecent assault in 1991 and one count of false imprisonment in 1992. He had been sentenced to pay a fine in respect of each of those offences. The only prison sentence that had been imposed on him had been a wholly suspended sentence of nine months' imprisonment for the offence of threatening to inflict serious injury. His Honour had been informed of the circumstances of the earlier offence of false imprisonment, for the Crown had submitted, unsuccessfully, that the circumstances were sufficiently similar to make evidence of the earlier occasion admissible at the trial as propensity evidence.

39. After the complainant and two prosecution witnesses had completed their evidence, counsel for the applicant told the judge that he wished to elicit from the informant (a) that the applicant had never been convicted of rape and (b) that he had never served five years' imprisonment.[6] After some debate as to whether that involved evidence of good character, whether questions eliciting those answers should be allowed to correct the false impression that the jury might have derived from the complainant's evidence and the need for the prosecution to redress the balance if the questions were asked and answered as expected, there was a short adjournment. Upon resuming his Honour said:

"I have given this very vexed question a great deal of thought. In the end, rather than make a final decision, I am really going to put it to Mr Drake as to what he wishes to do. It seems to me that should I allow Mr Drake to elicit from the informant that the accused has no conviction for rape, nor has he been imprisoned for a period of five years, that I should allow Ms Pullen to call evidence to the effect that the accused has a conviction for false imprisonment and that I should allow her to call evidence which was relevant to that conviction. I would allow that evidence to be given by the Crown as going to the probability that the accused did say what the complainant said he said, that is, 'I have done this type of thing before.' That would, in my view, put the accused in a far worse position than a position he is presently in, if one can say that. It would undoubtedly strengthen the Crown case if evidence were given that the accused has a conviction for false imprisonment in circumstances where he had pulled another female into a car and falsely imprisoned her. All this comes about, of course, as a consequence of the admission of evidence as is set out in page 17 of the transcript. However, I do not resile from the ruling I made there, as I am firmly of the view that the evidence I have admitted, as set out in page 17, is extremely relevant to the question of consent. In the circumstances rather than make a ruling myself, I am gong to give Mr Drake the opportunity of deciding, and it would be a forensic decision, no doubt, as to whether he wishes to pursue his application in relation to what evidence he should lead from the informant."

Mr. Drake was counsel for the applicant and Ms Pullen the prosecutor. Mr. Drake decided not to lead the proposed evidence from the informant.

44. In order to decide these grounds it is necessary to bear in mind the complaints that are made. Under cover of ground 1 Mr. Robinson argued that either the judge had not exercised the discretion to exclude unduly prejudicial evidence at all or the evidence was so prejudicial that his Honour's decision not to exclude it caused the trial to miscarry. Under cover of ground 2 it was primarily argued that there had been a miscarriage of justice, but reference was also made to the question of character evidence. There are, accordingly, three main submissions to be considered.

47. As to the first submission, it is true that his Honour said only that the impugned evidence was relevant. He said nothing expressly about the Christie[7] discretion, but the matter of prejudice had been referred to by counsel immediately before the ruling. Trial judges decide questions like this every day. It is inconceivable that an experienced judge would have confined his attention only to relevance without considering prejudicial effect. So much was effectively acknowledged by counsel for the applicant below.[8]

50. As to the second submission, I have no doubt that the evidence was rightly admitted. It was highly probative and its prejudicial effect could be overcome by a direction to the jury to the effect that what the applicant had allegedly said was not evidence of a previous offence or a previous sentence of imprisonment. His Honour did give such a direction and no complaint is made about it. On the contrary it is expressly conceded that the direction was correct. An appellate court must ordinarily assume that juries comply with such directions.[9] Moreover, as Cummins, A.J.A. pointed out in the course of the argument, it was not difficult for the jury to accept such a direction, because the truth or otherwise of what the applicant had allegedly said was of less importance than whether he had said it. In that regard it is instructive to recall the answer the complainant gave in cross-examination. She emphasized the threat.[10]

53. Counsel submitted that the prejudice was all the greater because of the passages in the prosecutor's final address that are the subject of ground 4, but they were cured by direction.[11]

56. As to the third submission, I do not consider that there was any miscarriage. If counsel for the applicant had asked the two proposed questions of the informant and they had been answered as expected and nothing had been done to redress the balance, unfair doubt would have been cast on an important part of the Crown case. The jury might well have reasoned that the complainant was making up that part of her evidence or even all the evidence set out at [8]. It was open to his Honour to conclude that, if they were not informed that the applicant had a conviction for false imprisonment and told something of the circumstances relevant to that conviction, the pendulum would have swung too far in his favour. If it were necessary, I would hold that the proposed evidence would have been evidence of good character because it went further than was necessary to correct any false impression that the jury may have derived. The right solution was a direction to the jury and that is the course that was followed.

60. Mr. Robinson submitted that, in the course of her final address, the prosecutor had on at least five occasions invited the jury to speculate as to why the complainant would lie. He conceded that it had been suggested to the complainant in cross-examination that her motive was crimes compensation and that the prosecutor was entitled to rebut that suggestion but, he contended, she had gone much further. I shall not set out all the passages. The following two are representative:

"You heard [the complainant's] evidence that the police would question her anywhere. Even if she was loitering at a tram stop they'd stop and hassle her and ask her questions. Hassle was my word but I suggest that was the impression that she was giving you. It's a matter for you but I suggest commonsense would tell you. Yet she has supposedly decided, 'Here's the man, I'll say rape, I'll meet with all these police officers, I'll attend all the court hearings, I'll be medically examined by Dr. Wells, I'll give evidence three years after the event at the accused's trial.' Ask yourself, you saw her, you assess her, you can see the condition she's in. Why would she do this if it wasn't rape? ... Your commonsense - you heard her evidence about this, you might think that there's a ring of truth in this, given the world she lived in, and lives in, if you like. Why would she run the risk of being seen as a 'dog', unless the allegations were true. She said this to you: 'A lot of times because of this code in the underworld you don't talk or you suffer consequences.' She also said: 'I've been led into a life where there is a code and that is you don't lag, you don't tell on people.'"

64. Counsel submitted that the prosecutor's final address infringed the prohibitions to be found in such cases as Palmer v. R.[13] and R. v. Hewitt[14] and that his Honour should have acceded to the application that was made, on that ground, that the jury be discharged_._ That in turn led to distinctions, either by way of submission or in questions from the Bench, between absence of evidence of motive to lie and evidence that a complainant did, or did not, have such a motive. A distinction was also suggested between saying that the accused cannot suggest a motive for the complainant to lie and arguing that, in fact, the complainant has no such motive. Another suggested distinction was between asking why the complainant would lie and arguing that she had no motive to do so.

67. I find it unnecessary to decide any of the foregoing points. This was not a case where unacceptable questions had been asked in a record of interview or in cross-examination of the applicant. The impugned passages occurred only in the course of the prosecutor's final address. It would be an unusual case where that alone meant that there was a "high degree of need"[15] to discharge the jury. Much more often the position can be remedied by an appropriate direction.[16] Contrary to counsel's submission, I think that that was the case here. No complaint is made of the direction that was subsequently given to the jury, nor was it the subject of any exception below. The ground is that the jury should have been discharged. That ground is not made out.

71. Mr. Robinson argued that the verdicts were unsafe and unsatisfactory for five reasons. The first was that mentioned in ground 3, which was argued only as a particular of ground 5. It was conceded that the judge had correctly directed the jury that the complainant did not have to be imprisoned during the whole of the time that she was in the car and that the Crown had not so confined its case. The issue arose because of a dispute as to when, if at all, the applicant activated a lock or locks on the car doors. The complaint was simply that both counsel had addressed the jury on the footing that the complainant was detained against her will during the whole period that she was in the car and that, if counsel for the applicant had known that the position might be put to the jury in a more limited way, he would have modified his final address. In my opinion that did not, either alone or in combination with other factors, give rise to a miscarriage of justice.

74. The second and third reasons may be dispatched even more summarily. The second was that the matters complained of in grounds 1 to 4, considered together, constituted a miscarriage.[17] It will be apparent from what I have written that I do not accept that submission. The third was that there was no compelling reason for acquitting the applicant on counts 2 and 3 but convicting him on count 4. It is elementary that the mere fact that a jury have a doubt about part of a complainant's evidence does not oblige them to doubt the whole of it. Moreover it was not, and could not be, submitted that there was inconsistency. The issues were different. It was common ground that the complainant was with the applicant in his vehicle that night but the defence denied that the oral penetrations had occurred at all and argued that there were discrete weaknesses in the complainant's evidence on those counts. By contrast, the only issues on count 4 were consent and whether the applicant was aware that the complainant was not, or might not be, consenting. In those circumstances the verdicts on counts 2 and 3 do not show the verdict on count 4 to be unsafe.

77. The fourth reason counsel advanced was that the attack on the complainant's credit was so powerful that no jury, properly instructed, could fail to have a reasonable doubt about her evidence. I do not accept that submission. Not only did the complainant give evidence sufficient to support each count on which the applicant was convicted, but she was also frank in making a number of concessions. They included concessions that she had many prior convictions, that she had been a heroin user, that she had been a prostitute, that her first statement to the police contained a falsehood as to where she was allegedly abducted and that she had told other lies to the police. It was suggested to her that, on the evening in question, she was working as a prostitute to feed her heroin addiction, that she approached the vehicle driven by the applicant and travelled with him to another location where they had consensual sexual intercourse. She denied those suggestions, although she acknowledged that she may have taken heroin before the incident and overdosed on heroin and other drugs afterwards. The complainant's allegations were not delayed. They were made to a policewoman and to a medical practitioner the following day. On both occasions, despite inconsistencies, she alleged non-consensual vaginal penetration. In my view the jury were entitled to be satisfied to the requisite standard on counts 4 and 5.

80. I have reached those conclusions without relying on the largely supporting evidence of the woman the applicant called Jackie[18] or taking into account the fact that the applicant stood mute. Accordingly I need not decide whether account could be taken of the latter, with due caution, in the light of R. v. Emmerson[19] and RPS v. R.[20]

83. Finally, reliance was placed on three passages in the prosecutor's final address to the effect that the applicant would have regarded the complainant as unlikely to go to the police and unlikely to be believed if she did, a heroin addict and "the perfect target, a person you believed to be a prostitute, someone you believed to be a prostitute because she's in a street frequented by prostitutes". Counsel for the applicant asked that the jury be discharged on those grounds as well as the alleged Palmer infractions. Mr. Robinson argued that the impugned parts of the address had a connexion with the evidence in [8] because the jury were likely to reason that, if the applicant had committed a similar offence for which he had been sentenced to prison for five years, he was all the more likely to think of the complainant as an easy target. That overlooks the direction that they were given. The impugned passages in the prosecutor's address do not, in my opinion, result in either of the verdicts being unsafe.

86. For these reasons, notwithstanding Mr. Robinson's thorough and helpful submissions, I would dismiss the application.

[1] Ground 5, as argued, was not a wholesale invocation of the line of cases of which M. v. R. [1994] HCA 63; (1994) 181 C.L.R. 487 is the most often cited. Instead it was argued that the verdicts were unsafe and unsatisfactory for five identified reasons.

[3] In examination-in-chief the complainant said that it seemed like about an hour, but in cross-examination she said that it was of the order of a quarter or half an hour.

[4] There were two versions in the depositions, resulting in an apprehension that the complainant might testify that the applicant said that he had already done five years' gaol for rape and unlawful imprisonment.

[5] Crimes Act 1958, s.38(2)(a).

[6] One would have thought that "I have got five years gaol for it" referred to the sentence rather than to the term actually served, but nothing turns on the point.

[7] R. v. Christie [1914] A.C. 545.

[9] See, for example, Rozenes v. Beljajev [1995] VicRp 34; [1995] 1 V.R. 533; R. v. TJB [1998] 4 V.R. 621; R. v. KRA [1999] VSCA 157 and R. v. Miller [2000] VSCA 67 at [18]. The second sentence of [13] in Gilbert v. R. (2000) 74 A.L.J.R. 676 is directed to a different point: see especially [12], [14-17], [101].

[12] I shall come to ground 3 later, because counsel argued it only as a particular of ground 5.

[13] [1998] HCA 2; (1998) 193 C.L.R. 1.

[14] [1998] 4 V.R. 862.

[15] Often wrongly called a "high degree of necessity". See R. v. Boland [1974] VicRp 100; [1974] V.R. 849 at 866-867. The cases in this Court applying R. v. Boland include R. v. Holt and Merriman (1996) 87 A.Crim.R. 82 at 86; R. v. Su [1997] 1 V.R. 1 at 39; R. v. DDR [1998] 3 V.R. 580 at 581, 594; R. v. Saffoury [1998] VSCA 36 at 7; R. v. Matthews [1998] VSCA 2; [1999] 1 V.R. 534 at [9] and R. v. Miller at [18].

[16] Compare R. v. PLK ([1999] VSCA 194; 1999) 108 A.Crim.R. 414 especially at [19]. No such direction was given in R. v. Hewitt: see 866-867.

[17] See R. v. Kotzmann [1999] VSCA 27; [1999] 2 V.R. 123 at [114] and the cases there cited.

[18] It was suggested that she was not known to the complainant by that name, but the question was not asked of her in an unequivocal form: cf. transcript, 228 lines 10-12 and 231 line 27 to 232 line 4.

[19] Unreported, Court of Appeal, 12th September 1997 per Hayne and Charles, JJ.A.

[20] [2000] HCA 3; (2000) 74 A.L.J.R. 449 especially at [27-29], [35].