R v Crooks [1999] QCA 194

4 As Atkinson J has pointed out, reliability is not a relevant criteria in this case for determining the admissibility of the interview as the Crown wished to rely upon it as a lie. In any case, the appellant persisted in his claim made in the police interview: his evidence in the trial was that he did not know the complainant by her full name but simply as "Libby" or "Bett" and that he did not know that his act of sexual intercourse just two days earlier with "Libby" or "Bett", which was his first ever act of intercourse, was the same act of intercourse to which police were referring in the interview.

5 There is no reason why this Court should interfere with the learned trial judge's exercise of discretion not to exclude the police interview.

6 As to the unsafe and unsatisfactory ground, a number of particulars were relied upon. The first was the lack of injuries or of any reported physical pain connected with the act of intercourse. The complainant did not allege the rape was physically violent: she was a mature woman who had been married and had borne at least one child, now the approximate age of the appellant. In the circumstances it is unremarkable that there were no injuries or complaints of physical pain.

7 The second particular was that the complainant could have escaped but did not. The complainant's evidence was that the offence occurred in her room in a boarding house. She consistently told the appellant she did not want sex but the appellant forced himself on her. The appellant ejaculated, went to the bathroom, wiped the complainant's vagina with a washer then left. That she made no effort to run from her own room in those circumstances, whilst perhaps a talking point for the defence at trial, is hardly sufficient to make a verdict unsafe and unsatisfactory.

8 The appellant next emphasises the lack of fresh complaint and the fact that when a complaint was made it was in response to a leading question which was then reinforced by Crisis Care workers. The complainant gave evidence that no complaint was made until the afternoon of the next day as she had decided initially not to make a complaint. On the application of defence counsel the learned trial judge ruled the evidence of the complaint of rape was inadmissible and no evidence was before the jury that the complaint of rape was made only in response to a leading question: "Were you raped last night ?" The evidence having been excluded at the request of the defence, it can hardly now be relied upon as making the verdict unsafe and unsatisfactory. In any case, it is consistent with the complainant's case that initially she did not wish to make a complaint.

9 The next particular relied upon is that shortly after the appellant left the complainant's room she opened the door as she heard her landlord; she spoke to him but made no complaint and did not appear visibly distressed. Bearing in mind her maturity, her decision at that time not to make a complaint, and her medical condition, this is not necessarily inconsistent with her version of events.

10 The next complaint is the unexplained failure of the prosecution to call any forensic or medical evidence which would have confirmed the complainant's version of events particularly in respect of the washer and the complainant's physical condition. It is difficult to understand what a medical examination could have demonstrated: the rape was not physically violent, she was a mature woman who was not sexually inexperienced and there had been some delay in making the complaint to the police. This delay may also have been relevant as to the lack of evidence about the washer. No doubt these were matters which were emphasised by the defence in its conduct of the case below. The point is not one which would justify rejecting the jury's verdict.

11 The next point relied upon by the appellant is that the complainant was contradicted by independent witnesses. Mr Carvolth gave evidence of the conversation he had with the complainant and the appellant prior to the offence which varied from the complainant's version. His evidence of that conversation was equally at variance with the appellant's version. The complainant's landlord, Mr Long, gave evidence of a conversation with the complainant after the offence which varied from the complainant's, largely as to whether she mentioned his dog. He, however, did not provide his statement until a few days before the trial in December 1998, nine months after the offence. There is no substance in this complaint.

12 The final particular relied on by the appellant is that the complainant demonstrated a willingness to bolster her own evidence by recent invention. The complainant gave evidence that Carvolth and the appellant in a discussion in her presence prior to the offence occurring said "women pretend they didn't want sex when they did" and Carvolth said "Sometimes that's the case". The complainant gave evidence that she had put this in her statement to police when, it seems, she had not. The conversation was denied by the witness Carvolth. As with all the other particulars relied upon by the appellant to establish that the verdict was unsafe and unsatisfactory, this evidence, whilst no doubt of use to the defence at the trial, either alone or collectively with the other matters to which the appellant refers, does not demonstrate that the complainant's evidence was such that it could not be safely relied upon. When the whole of the evidence is reviewed it is abundantly clear that it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.[1]

13 Furthermore, the learned trial judge told the jury to approach the complainant's evidence with great care and, although such a warning is no longer mandatory,[2] if they found no corroboration of her evidence, "that [was] a greater reason for approaching her evidence with great care". This direction was requested by defence counsel and was favourable to the appellant. The learned trial judge told the jury that they must be satisfied beyond reasonable doubt that the complainant was correct when she said she did not consent. This was the essential question for the jury's determination. The jury were entitled to accept the evidence of the complainant in this case and to reject the evidence of the appellant. It follows that the appeal must therefore be dismissed.

1 I agree with the reasons of Atkinson J for dismissing this appeal.

1 Elizabeth Armstrong lived alone in a boarding house in Proserpine. Mrs Armstrong is a woman in her fifties who is on a disability support pension as she is an epileptic and a diabetic, and has thyroid deficiency and suffers from depression. The appellant, Trevor Crooks, lived a block and a half away in a flat. One night Mrs Armstrong was having a cup of tea with Mr Carvolth, who also lived in the boarding house when the appellant, who knew Mr Carvolth because they both worked at the mill, stopped by. Mr Crooks told Mrs Armstrong that he would like to write to her son with whom he had been at school and they left Mr Carvolth's room to go to her room so that she could get her son's address to give to him. What then occurred was the subject of different versions by the appellant and Mrs Armstrong. Mrs Armstrong's evidence, which was accepted by the jury, was that she was raped by the appellant in spite of her clearly stated vocal protests. The appellant's version, which was not accepted, was that she propositioned him and forced sexual intercourse upon him.

2 After Mrs Armstrong made a complaint to the police, the appellant was interviewed. A field tape of the interview at his home was excluded by the trial judge in the exercise of his discretion. However the learned trial judge did not accede to the defence submission that a video tape of an interview at the police station should be excluded.

3 The first ground of appeal in this matter is that the trial judge erred in the exercise of his discretion in not refusing to allow the admission of the video tape.

4 The police interview with Mr Crooks was video-taped at the police station. His father was present at his request. He was told that he was going to be asked some questions about a complaint they had received from an Elizabeth Ellen Armstrong at Room 18 at the Anchor Lodge in Proserpine, and her allegation that Mr Crooks went into her room on Thursday night at about 8:30pm and had sex with her against her will. His reply was:

"I don't think so mate. I wouldn't even know who the person is."

Mr Crooks was then given a warning by the police drawing attention to his right to silence in the following terms:

"Before I go any into any of the - further interview, I'll just - I'll warn you, you don't have to partake in this interview if you don't want to, okay, and you don't have to say anything you don't want to `cause everything you do say is being taped and may later be used as evidence, okay. Do you understand you don't have to say anything if you don't want to? Okay. So, are you still prepared to proceed to with interview?"

"No, because I never done nothing, so I'm not going to carry on."

The police then proceeded to take formal details such as his name, address, date of birth and Mr Crooks then complained about people ringing him at 2 or 3 o'clock in the morning with the wrong number. The police officer then asked:

"Well, are you prepared to tell me whether you know this woman or not?"

"Yes, I'll say that, but I don't know her at all. ... I wouldn't even have a clue who she is."

He denied knowing her son from school and specified the names of the persons at the Anchor that he knew and that they did not include Mrs Armstrong. He repeatedly denied knowing her. The interview was terminated shortly after that.

5 The trial judge viewed the video tape recording and formed the view that in spite of Mr Crooks' saying that he did not want to continue with the interview that he changed his mind and was prepared to answer some questions. The trial judge's observations as a result of viewing the video were as follows:

"I observed the accused on the tape and in my opinion he appeared to make a conscious decision to continue with the interview notwithstanding the answer that appears at the bottom of page 2. His father was present. His father appeared to show no cause for concern at a continuation of the interview. It's not said that he was not speaking because he did not want to speak or that his answers were involuntary or as a result of coercion or pressure or because he was feeling overborne, and I think that whilst he may have been in a position of some apprehension and anxiety at the house, that situation changed somewhat by the time he got to the police station to that extent I am not satisfied that any unfairness associated with the field tape continued into the interview at the police station."

His Honour concluded that he believed that Mr Crooks had made a conscious decision to proceed notwithstanding his earlier answer that he did not wish to. In those circumstances the trial judge was satisfied that it was not unfair to continue with the interview.

6 The answers to the questions asked by the police were important during the trial because if the jury took the view that the answers he gave were untrue then that was capable of amounting to corroboration of Mrs Armstrong's complaint[3]. It is clear on viewing the video tape, as we were invited to do by counsel for the appellant, that the appellant was neither tricked[4] nor overborne but essentially changed his mind about whether or not he would answer the questions. The question that arises on this appeal is whether or not in those circumstances the learned trial judge ought to have exercised his discretion to exclude the evidence.

7 The appellant made no confession during the police interview. That is not the reason why the admission of the interview into evidence was sought. Its admission was sought because it was said that the appellant's answers contained lies which were capable of corroborating[5] the account given by Mrs Armstrong. However there is no reason of principle why the admissibility of answers which can be shown to be lies should be treated any differently from the admissibility of other answers which constitute admissions or confessions. Both are inculpatory of the accused and therefore ought be subject to similar rules governing admissibility[6].

8 It appears that the answers were given voluntarily. If they were not, they would not have been admissible and would necessarily be excluded[7]. While a confession not made voluntarily is inadmissible, that is not the only ground for exclusion. A trial judge may exclude a confession in the exercise of his or her discretion on the grounds of unfairness,[8] public policy,[9] or because the probative value is small and the undue prejudice likely to be suffered is substantial.[10] The appellant argued in this case that the interview should have been excluded from the evidence in the exercise of the judge's discretion on the grounds of unfairness or on public policy grounds because of the impropriety of the police in continuing with the interview. While each of these is a separate ground of exclusion, the factors relevant to the exercise of the discretion overlap.

9 The unfairness discretion generally falls to be exercised when the statement made by the accused is unreliable[11]. This is inapt to define when it would be unfair to allow the admission of statements which are said to be lies, because lies are by their very nature, unreliable statements made by the accused. It is therefore necessary to consider any reasons of public policy why it would be unfair to the accused or otherwise against the public interest to admit the statements made in these circumstances. This test is that which the High Court in Swaffield[12]said was the test applied in Cleland v The Queen:[13]

"... where a voluntary confession was procured by improper conduct on the part of law enforcement officers, the trial judge should consider whether the statement should be excluded either on the ground that it would be unfair to the accused to allow it to be admitted or because, on balance, relevant considerations of public policy require that it be excluded."

10 So far as unfairness to the accused is concerned, it can hardly be said to have been unfair to him not to exclude a statement voluntarily made by him in the exercise of a free choice to make a statement after an appropriate warning, even if his initial reaction had been that he did not wish to make a statement.

11 However that is not the end of the matter. There remains the question of whether it is contrary to public policy to allow such a statement to be admitted. Is there a general rule that no statement made by an accused who has said after a warning is given that he or she does not want to answer questions should be admitted in evidence?

12 The answer appears to be that there is no such rule. Both the Court of Appeal in Victoria[14] and the Court of Criminal Appeal in New South Wales[15] have recently refused to overturn the exercise of discretion by a trial judge to admit a record of interview into evidence where the accused had strongly expressed a desire not to continue with the interview[16] or had refused to answer questions. But these cases aside, there is no reason of public policy why such a rule of exclusion should exist.

13 Public policy necessarily involves the weighing of competing considerations. These have been variously described. On the one hand there is the public interest in the protection of citizens from illegal or irregular invasions of their liberties by the authorities or of not giving curial approval to police misconduct; on the other, is the interest of the State in the conviction of wrongdoers and hence that evidence bearing upon the commission of a crime and necessary to enable justice to be done should not be withheld from courts of law on any merely formal or technical ground[17].

14 The particular liberty infringed upon in this case might properly be characterised as the "right to silence". This "right" has been best described as

"the privilege that any person enjoys not to answer questions asked of him [or her] about an alleged offence by persons in authority, his [or her] entitlement to be treated in a lawful and proper manner by persons in authority engaged in investigating an offence and the immunity from the drawing of adverse inferences from his [or her] refusal to answer questions about the offence asked by persons in authority".[18]

There is nothing about this privilege which disentitles a person to change his or her mind about answering questions or from answering a limited number of questions. I respectfully agree with the observations of Smith J in Clarke[19] that:

"It is not uncommon for an accused to intimate that he [or she] does not wish to answer any questions ... or to make a statement or explanation ... It would be unwise to hold that every time an accused states that he [or she] does not want to answer questions, some further questions are put and answers are given or explanations or statements made such answers, statements or explanations are inadmissible. Everything depends on the circumstances."

15 In circumstances where the trial judge has drawn a conclusion that the accused made a conscious decision to continue with the interview and no error can be shown in that conclusion, then there can be no error in the judge's exercise of discretion[20] to allow the admission of the record of interview. There was here no suggestion of intimidation, persistent importunity or sustained or undue insistence or pressure[21] by the police so as to constitute misconduct.

16 So far as the unsafe and unsatisfactory ground is concerned, if the jury accepted the complainant's evidence, as they must have, and rejected the appellant's evidence at trial, as they surely did, then it would not have been unsafe and unsatisfactory for them to convict. They had the advantage not available to the Court of Appeal, of seeing and hearing the witnesses. There was no complaint about the directions given by the learned trial Judge. In this case there was, in addition, the properly admitted evidence that the accused denied knowing the complainant to the police only two days after, on his evidence at trial, she had forced sexual intercourse upon him and evidence by Mr Carvolth that the appellant and Mrs Armstrong seemed to know each other before the night in question. The factors raised by the appellant's counsel as rendering the verdict unsafe and unsatisfactory[22] are not persuasive, particularly in the light of s.632 of the Criminal Code and the jury's role, properly instructed, to determine the facts on the evidence properly before them. Upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[23]

[1]. M v The Queen [1994] HCA 63; (1994) 181 CLR 487 per Mason CJ, Deane, Dawson, Toohey JJ, at 493.

[3] Edwards v. The Queen [1993] HCA 63; (1993) 178 CLR 193 at 198.

[4] Cf Duke v The Queen [1989] HCA 1; (1989) 180 CLR 508 at 513.

[5] The emphasis on corroboration in a rape case may be misguided since the amendment of s.632 of the Criminal Code by Act No. 3 of 1997 which removed any requirement that a judge must warn a jury that it is unsafe to convict the accused on the uncorroborated testimony of a witness. Subsection (3) specifically provides that a judge must not warn or suggest in any way to the jury that the law regards any class of complainants as unreliable witnesses: as to which see R v. Ewanchuk (unreported, Supreme Court of Canada, 25 February 1999) particularly at [82], [88]-[89], [93]-[94] per L'Heureux-Dubé J.

[6] Cleland v. The Queen [1982] HCA 67; (1982) 151 CLR 1 at 23.

[7] R v Lee [1950] HCA 25; (1950) 82 CLR 133 at 144; R v Swaffield (1998) 72 ALJR 339 at 341-343 per Brennan CJ; 353 per Toohey, Gaudron and Gummow JJ.

[8] McDermott v The King (1948) 76 CLR 501; Cleland v The Queen (supra); Van der Meer v The Queen [1988] HCA 56; (1988) 62 ALJR 656; R v Swaffield (supra) at 343-346, 354, 365.

[9] The Queen v Ireland [1970] HCA 21; (1970) 126 CLR 321 at 334-335 per Barwick CJ; Cleland v The Queen (supra); R v Swaffield (supra) at 346-349, 354-355, 367-368.

[10] R v Swaffield (supra) at 350-351, 355-356; R v Morris (1995) 78 A Crim R 465.

[13] (supra) at 9 per Gibbs CJ, 16 per Murphy J, 18-20 per Deane J, 31 per Dawson J.

[14] Robinson (1996) 89 A Crim R 42 at 52.

[15] Clarke (1997) 97 A Crim R 414.

[16] Cf R v Hart [1979] QdR 8 at 13.

[17] Lawrie v Muir [1950] SLT 37 at 39-40; R v Swaffield (supra) at 347; Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 at 74-75; McDermott v The King (supra) at 512-513.

[20] R v Ireland (supra) at 332; Clarke (supra) at 418.

[22] The lack of injuries or physical pain connected with the act of intercourse; the complainant's failure to escape; the lack of fresh complaint; that her complaint was only made in response to a leading question and was then reinforced by a crisis care worker; lack of notable distress after intercourse; failure to call forensic or medical evidence; the complainant was contradicted by independent witnesses as regards material issues; the complainant was willing to bolster her evidence by recent invention.

[23] M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 493.