R v Castles

3 I ruled against that application ex tempore and now provide my reasons for taking that course.

4 The accused's argument in support of the application rested upon two general factual bases: first, he submitted that evidence of the complainant's complaints to a police officer and to an ambulance driver shortly after she was found to be seriously injured, which had been admitted largely without objection, were no longer relevant or admissible, so that there would be an unacceptable risk that despite any direction to the contrary the jury would misuse that evidence on the remaining counts. Secondly, he argued that evidence from the last witness to see the complainant unharmed, Theresa Cliff, to the effect that the accused was at that time, about 3.00am on the relevant morning, walking around the lounge room of the house in which Cliff and he were then living, with his penis exposed would also be inadmissible on the assault counts. This inadmissibility would also be unable to be corrected by any appropriate warning, submitted the accused. These problems arising from the failure of the Crown to produce a prima facie case on Count 3, argued the accused's counsel, meant that this trial should now be discontinued and a new trial embarked upon in respect of Counts 1 and 2.

5 It is fundamental to proper criminal procedure that each count on a presentment be the subject of separate consideration by the jury. It is necessary for the judge's directions to separate the evidence admissible on any count from evidence only admissible on other counts on the same presentment. In this case, had Count 3 not been the subject of a successful no case submission, it would have been necessary for specific directions to be given as to the very limited use which could be made of the evidence of complaints made by the complainant to the police officer and the ambulance driver. None of that evidence was ever admissible on the attempted murder or serious injury charges. A direction would have been necessary to ensure that the jury applied that evidence only to the rape count, assuming it was admissible on that count, having regard to the very limited nature of the complainant's evidence-in-chief[1]. But its admissibility was never challenged on the ground that because the complainant gave no evidence a recent complaint was irrelevant. It appeared that the accused wished to rely on discrepancies between the two complaints reported in the evidence. In one complaint the complainant told an ambulance driver that four men had raped her, without identifying the accused as one of them. In the other, to a police officer, she implicated only one person. In any event, it will be now necessary to direct the jury clearly that these complaints have no relevance to the counts they must now consider and explain why this is so. There is no more reason to believe that the jury will be in any way less able to comply with this direction now than they would have been had the rape counts been still alive. If the accused still seeks to rely on the apparent discrepancy in the complainant's accounts to throw doubt on the identity of her assailant, a direction to the jury as to that will have to be formulated taking into account how the argument for the accused is put.

6 As for the evidence of the accused exposing himself and being told to "put it away" by the complainant, the relevance of this evidence to the remaining counts seems, in my opinion, to be clear. As this activity was being engaged in by him at the moment the complainant was last seen unharmed in his presence by Theresa Cliff, it is relevant to the circumstances in which she last saw the accused and the complainant, even though it is not clear how long after this event the complainant suffered her life-threatening injuries. In any event, this piece of evidence is of little moment in the overall context of this case. If that is not clear to the jury already, it will be by the end of the charge.

7 Discharge of a jury in a criminal trial is justified only if it is necessary to ensure a fair trial. Such necessity has not been displayed in this case. For these reasons the trial will proceed with this jury.

[1] Kilby v R [1973] HCA 30; (1973) 129 CLR 460; Sparks v R (1964) AC 964.