R v Lewis and Baira [1996] QCA 405

Court of Appeal (Qld)|1996-10-18|Before: Davies J, Pincus J, Dowsett J

JOINT REASONS FOR JUDGMENT OF PINCUS J.A. AND DAVIES J.A.

Each appellant appeals against his conviction in the Cairns District Court on three counts of rape. Further, the appellant Baira applies for leave to appeal against sentence.

The Crown case was that the complainant, a person who knew both appellants well, was raped by them in a park. She had gone to a nightclub and from there proceeded to a party which she had been told was being held, apparently in the open, at a bridge. She "went to the toilet" behind a tree and when she was returning from the tree she saw the appellants, both of whom spoke to her. They said in effect that the complainant's friend Betty Baira wanted to talk to her at a park and that the two appellants had been asked to take her there. The complainant went with the two appellants to the park, but Betty Baira was not to be seen there. She decided to wait, being encouraged by the appellants to do so. After some minutes, the complainant announced that she was going back to the party, but the appellants, who had been standing on either side of her, grabbed her and lay her down on what she described as a "metal box thing that you stand on to use the flying-fox". They then raped her, Peter Baira first, then Lewis, then Peter Baira again; each offender assisted the other. She attempted to resist, called out and screamed. Eventually Betty Baira came and intervened, when Peter Baira was raping the complainant for the second time.

Betty Baira, Peter's sister and Lewis' cousin, gave evidence of having heard the complainant scream "help" and that she went towards the sound. A little later, she found the complainant, Peter Baira and Lewis at the park. The complainant was lying on her back and her pants were around her ankles; Peter Baira was standing in front of the complainant and Lewis was a metre or two away. Peter, according to Betty Baira, told Betty not to mention his name and that if she did, when he came out of gaol, he would bash her. In fact, he thereupon assaulted her, as is explained in more detail below.

There was evidence of fresh complaint, and also evidence that after the incident in question the complainant appeared to be distressed and was crying. A witness called Sammy Kris was declared hostile. When cross-examined he admitted having heard the complainant scream out for help on the night in question. There was evidence from a doctor of some injuries to the complainant which appear to have been consistent with her account of events. There was also evidence that the complainant had had consensual intercourse with one Rogers during the afternoon before the rapes and that she was showing signs of drunkenness on the night in question.

When Peter Baira was interviewed by the police he denied having been in the complainant's presence in the park; but he gave evidence at the trial to the effect that, with the assistance of Lewis, he took the complainant up to the park on the night in question and tried to have intercourse with her, with consent, but could not get an erection. He said that he walked away and then Lewis had intercourse with the complainant, again, with her consent. When Lewis finished, Peter Baira tried again, he said, to have sex with her, but the complainant yelled out "stop". He said there was no-one present at the relevant time except the complainant and the two appellants.

Lewis gave no evidence, but in an interview with the police, the content of which was proved, he gave an account of events. He said that Peter Baira took the complainant to the park, Lewis "walking behind him". Then, he said, Peter Baira had intercourse with the complainant; she was crying and said "no, no", but Peter Baira persisted until his sister Betty came. When asked whether he helped out in any way Lewis said "oh, not really". He said he "just touched her and that's it", explaining that he touched the complainant on the breast for about two seconds. He thought there was a third person there called "Ian". When asked whether he had seen Ian holding the complainant down, he first said he had and then later, asked the same question, said he had not.

The versions which the jury had to consider, from the participants, were therefore four in number: in summary, the complainant said she was raped by both appellants; Peter Baira told the police he was not there, but then gave evidence that Lewis had intercourse with the complainant, but that he (Peter) twice tried to do so, without success. Lewis told the police that he did not himself have intercourse with the complainant, but saw Peter Baira do so, despite her protests.

The substantial point taken on behalf of Peter Baira by Mrs Richards was that he should have had a separate trial; in addition, it was said that the jury was invited to discount Peter Baira's evidence, on the ground that he was an accomplice.

Peter Baira's counsel asked for a separate trial for his client. As we understood the argument, it was contended that the judge wrongly exercised his discretion in refusing this application, because Lewis' statement to the police, which was not admissible against Peter Baira, would have been likely to influence the jury against him. The judge made it clear to the jury that the interview with Lewis could be used only in his case, and no complaint is made about those directions.

Instances in which there has been considered an argument similar to that presented to us include Palmer (1968) 90 W.N. (Pt. 1) N.S.W. 188, and Harbach (1973) 6 S.A.S.R. 427. It appears desirable to quote some of what was said in the latter case, in a joint judgment of Bray C.J., Mitchell and Sangster JJ.:

"It has been emphatically stated over and over again by courts of the highest authority that the question of joint trials or separate trials is a question for the discretion of the trial judge . . . As in the case of other discretions a court of appeal will not interfere merely because its members or some of them, think that they might have exercised the discretion differently, but will interfere if the bounds of a judicial discretion have been exceeded. In fact there is, as far as we can discover, no reported case where a court of criminal appeal has allowed an appeal on the ground that the trial judge wrongly refused to order separate trials, nor did counsel refer to any such case . . .

That does not mean, of course, that such a case cannot arise. But three things are clear. The first is that when the accused are charged with committing the crime jointly prima facie there should be a joint trial . . . The second is that a joint trial may be ordered notwithstanding that one result will be that evidence inadmissible against one of the accused, though admissible against the other, will be before the jury . . . and the third is that it may be ordered notwithstanding that one of the accused or each of the accused is trying to cast the blame for the crime on the other . . . though both of these are highly relevant considerations to the exercise of the discretion . . . " (432)

In the following year a similar problem arose, in Stuart and Finch [1974] Qd.R. 297, where each of the appellants, charged with murder, had applied for a separate trial, Stuart on the basis that there was evidence that Finch had made a statement to the police implicating Stuart (304). The judge's initial decision to refuse a separate trial was upheld, as were decisions to refuse separate trials on subsequent applications.

This case is one in which the Crown evidence, if accepted, showed that the appellants had the common purpose of inducing the complainant to go to the park with them and there raping her, which purpose they effected, in co-operation with each other. When accused are charged with offences committed by persons having a common purpose, separate trials are not commonly granted: Kerekas (1951) 70 W.N. N.S.W. 102, Rountree (1958) 59 S.R.N.S.W. 144; the leading case on the subject is, at present, Webb and Hay [1994] HCA 30; (1994) 181 C.L.R. 41. At p. 88, Toohey J. referred to a judicial statement that there were "strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together. This is particularly so where each seeks to cast the blame on the other." Toohey J. went on:

"I respectfully agree with that discussion which emphasizes that when accused are charged with committing a crime jointly, prima facie there should be a joint trial. There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others. There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused". (89)

His Honour also referred to the fact that one of the accused made statements to the police implicating the other; that occurred here. In the judgment of Mason C.J. and McHugh J. there is to be found a statement of agreement with the reasons of Toohey J. on grounds of appeal other than those dealt with in that joint judgment; those grounds include that relating to separate trials.

Mrs Richards, for Peter Baira, was unable to identify any error of principle in the primary judge's refusal of separate trials, but contended that nevertheless this Court could and should hold the judge's exercise of discretion to have been wrong. We are in respectful agreement with the view taken by the learned trial judge; if it matters, there was, as Mr Meredith pointed out for the respondent, substantial evidence implicating Peter Baira.

The other point taken in relation to Peter Baira was that the judge in effect invited the jury to give less weight to the evidence Peter gave, on the ground that he was an accomplice of Lewis. The first specific direction about Peter Baira's evidence emphasised that there was no burden on him to prove his innocence, and went on:

"The evidence of Peter Baira and Isaac Baira is part of the whole of the evidence. It is upon the whole of the evidence that you decide upon your verdicts. You approach their evidence as you do that of any other witness. You look at what Peter Baira has told you in the light of other evidence you have heard and in particular other evidence that you accept. You may accept all of his evidence. You may reject all of his evidence." (emphasis added)

His Honour returned to the subject of Peter Baira's evidence a little later, describing it as -

" . . . evidence in the trial of both [accused] and you may have regard to what Peter Baira said as a witness in relation to both himself and to Patrick Lewis."

The judge then turned to another subject, following which he dealt with certain considerations applicable to Patrick Lewis: first, the statement he made to the police and second, the question whether he lied in that statement. In discussing the latter subject, the judge reminded the jury of Peter Baira's evidence that Lewis had intercourse with the complainant; his Honour then went on to discuss further the question of the effect of Lewis having told a lie to the police, if the jury were satisfied that he had done so. There followed immediately the passage which is the basis of the complaint on behalf of Peter Baira:

His Honour went on to say, in effect, that such evidence must be approached with caution and concluded by telling the jury (to summarise) that the warning about approaching Peter Baira's evidence with caution was relevant in determining whether they were satisfied that Peter Baira was telling the truth when he said that Lewis appeared to have sex with the complainant.

It would have been better if the judge had explained specifically that his warning that the evidence of Peter Baira should be treated with caution, on the ground that he was an accomplice, applied only to the subject matter with which his Honour was then dealing, namely the case against Lewis and, in particular, whether Lewis had or had not lied to the police. The argument for Peter Baira is to the effect that the jury might have understood, from what was said about Peter Baira's evidence, that it should be treated with caution in all respects, not only insofar as it had to do with the case of Lewis.

It is our opinion that a reading of the relevant passages, as a whole, leads to the conclusion that it is unlikely that the jury mistook the judge's intention, in the respect contended for by Mrs Richards. In arriving at that view, we have taken into account that counsel appearing for Peter Baira made no complaint about the matter, nor indeed about any aspect of the summing-up, which appears to us to have been a fair and balanced one.

In our opinion the appeal by Peter Baira against his conviction should be dismissed.

Three complaints are made by Mrs Richards about the judge's directions relating to Lewis; as one would expect, none of the three is without substance.

The first is that the judge misdirected the jury on a factual point. It will be recalled that Lewis admitted to the police that he had touched the complainant's breast while Peter Baira was having intercourse with her, during which time she was crying and pleading to be left alone. The judge referred the jury to the relevant part of the record of the police interview with Lewis and then went on:

"Now members of the jury, obviously that is in no way an admission, a complete admission that he held her down, held his arm across her chest whilst Peter Baira had sex with her on two occasions, and it is no admission whatsoever that he had sex with her while Peter Baira held her down. It is a matter for you, but you are entitled to look at that evidence as indicating a state of mind and a minor partial admission in relation to holding her down.

I emphasise that you can only look at it that way if you reject the rest of his evidence. You do not just look at it in isolation, but as I have told you, it is up to you. You can accept part of what someone says, or you can reject part of what someone says. So obviously you could only use that bit of evidence against Patrick Lewis if you were to reject his exculpatory statements that other than that he had nothing to do with it, he did not have sex with her, and did not hold her down.

But that is a matter for you. But it may be used as a minor partial admission and it may be used as a state of mind which indicates a willingness, albeit in a minor way, to deal with Robyn in a sexual way without her consent. Because you look at it according to him in the context in which he put his hand out and touched her breast when he says she was in effect being raped by Peter Baira."

What the judge was perhaps intending to convey was that, if Lewis' statement was accepted insofar as he said that his hand came in contact with the complainant's breast during the time when she was being raped, but was rejected in other respects, this would assist towards a conclusion that, as the complainant alleged, he had held her down: at least the admission went a small part of the way towards that conclusion. What the judge in fact said could have conveyed a rather different impression; he used the expression "a minor partial admission in relation to holding her down".

If a summing-up deals with the evidence in any detail and is ex tempore, it is likely that in some respects the mode of expression used may be thought unfairly to favour one side or the other. It is our opinion that what was said here perhaps over-stated the significance of the admission. But the admission had some importance; if the jury were satisfied that Peter Baira raped the complainant, Lewis' admission should have at least left them in no doubt that Lewis had physical contact with her during the very course of the rape.

It is our opinion that, although the expressions used in explaining this point to the jury could have been better chosen, what was said could not have misled the jury in any significant way.

The second ground pressed in relation to Lewis was that the judge mistakenly told the jury that the record of his interview with the police was not evidence. If the judge did so, then perhaps the jury might have convicted Lewis partly because they thought Lewis' denial to the police of having raped or participated in a rape of the complainant was not really before them.

The statement Lewis made to the police was principally exculpatory. In Wogandt (1988) 33 A.Crim.R. 31, a case in the Queensland Court of Criminal Appeal, McPherson J. (as is Honour then was), referring to statements contained in a record of interview remarked:

"We were referred on appeal to a number of English decisions concluding with Pearce (1979) 69 Cr App R 365 and Newsome (1980) 71 Cr App R 325 at 329-330, from which it appears that in England there may be some doubt as to the basis, the extent, and the purpose of admitting self-serving evidence contained in what are there described as "voluntary statements" made by the accused in the course of his interrogation. But in Queensland at least the words of Parke B in Higgins [1829] EngR 429; (1829) 3 Car & P 603 at 604; [1829] EngR 429; 172 ER 565 have never been qualified:

`What a prisoner says is not evidence, unless the prosecutor chooses to make it so, by using it as part of his case against the prisoner; however, if the prosecutor makes the prisoner's declaration evidence, it then becomes evidence for the prisoner as well as against him.'

See Allied Interstate (Qld) Pty Ltd v. Barnes (1968) 118 CLR 580 at 585; Lopes v. Taylor (1970) 44 ALJR 412 at 421-422; Williamson [1972] 2 NSWLR 28 at 295. These authorities emphasise that the weight to be allowed to such self-serving statements as evidence of the truth of the facts stated may not be great; but where as here the statement is tendered by the prosecution, it is wrong altogether to deny it, as did the magistrate in this case, the quality of admissible evidence in favour of the accused. "

In the same case reference was made to the decision of the Victorian Supreme Court in Day v. Dyson [1965] VicRp 22; (1965) V.R. 165, quotation of part of the reasons in which seems worthwhile, as perhaps a recollection of dicta of this kind influenced what the trial judge said:

"Any statements made in course of an admission may serve to qualify or explain the admission, or throw doubts upon it, and for this purpose they are admissible, but in so far as they are self-serving, they are not, save as explanatory or qualifying an admission, evidence in any real sense, of the truth of what is stated. I reject the submission that unsworn self-serving statements, admissible for this limited purpose, may, for all purposes, be treated as evidence of the truth of what is so stated, and, accordingly, acted upon as of the same character as evidence given on oath of the facts stated and subject to cross-examination". (169, 170)

This exposition of the law must be taken to be incorrect, as the authorities referred to in Wogandt, that decision itself and subsequent decisions such as Cox [1986] 2 Qd.R. 55 and Spence v. Demasi (1988) 48 S.A.S.R. 536 illustrate. The topic was discussed in Beck [1990] 1 Qd.R. 30; there, Macrossan C.J. pointed out that the self-serving portions of such a statement as is here in question would, if they stood alone, not be admissible, but if statements containing self-serving features get into evidence "the jury can give to the statements such weight as they think they deserve". His Honour went on:

"The jury are quite entitled to have in mind the possibility that self-serving portions of an accused's statement may not be as reliable as those parts which are against interest. Common sense and awareness of everyday psychological factors would alert them to this." (33)

What the primary judge said about the subject in the present case was not in accordance with the view of exculpatory statements which has prevailed. Summarising, his Honour told the jury that the interview with Lewis and his statements made during the interview were not evidence; that this material was not the same as giving evidence on oath in court; that there were things he said in the course of that interview which were against him and things which were exculpatory. His Honour concluded this part of the summing-up by saying:

"In other words, he gave an account to the police officer that in effect he was not involved in any rape of Robyn Brough at all. As I said, that is not evidence but it is material. Those statements he made are part of the evidence. In other words, you have heard that he did make those statements at that time and you can have such regard to those statements as you see fit."

It will be noted that his Honour referred to the statements as "part of the evidence", but the principal message was that the statements were not evidence.

The significance of the distinction between statements to which the jury might have regard, and evidence, was not explained to the jury. What the jury might properly have been told, in accordance with Beck, would not in our view have been likely to make Lewis' chances of acquittal greater than did the directions in fact given. There was an element of truth in what the judge said, because unsworn statements made out of court, even when they get into evidence, are evidence on a different plane from evidence given in the ordinary way in court. We do not suggest that evidence of the latter type is necessarily more reliable than the former; a jury might rationally think that an accused person's early verbal reactions, in an interview by the police, are of great weight. In the present case, if the judge's error in conveying to the jury that the police record of Lewis' interview by the police was not evidence induced them to think that, particularly insofar as it was exculpatory, it was not necessarily to be treated in the same way as evidence from Lewis himself, given in court, then it is difficult to understand how Lewis could legitimately complain of that. And we cannot see that the judge's error could have had any larger effect.

The most difficult point raised by Mrs Richards on behalf of Lewis was, in our opinion, the submission that a Domican direction should have been given with respect to the identification of Lewis as one of the assailants; the High Court decision is in 173 C.L.R. 555. In the cross-examination of the complainant by Lewis' counsel it was suggested that she was very drunk and as we have pointed out there was other evidence to the effect that she seemed to have drunk too much. The complainant had apparently told the court at the committal that Lewis was following behind when she went towards the park with Peter Baira; in evidence-in-chief at the trial she said that Lewis and Peter Baira took her to the park. It was put that there were "other fellows there as well" and that a man called "Ian" was there; it will be recalled that in his statement to the police Lewis said that he thought that "Ian" was there.

The notion that there was a fourth person present received some support from the evidence of the complainant. She said that when Lewis pulled his penis out she felt "somebody else's hands on my shoulders"; that person was neither Peter Baira nor Lewis. When Lewis withdrew his penis, she said, her shoulders were grabbed from behind and then Peter Baira let go of her shoulders and went around and stood in between her legs "and then Patrick [Lewis] had his arm clamped over again". While Lewis was "doing it" she heard from somewhere behind her a voice saying "When's it going to be my turn?".

In cross-examination the complainant admitted that she had told a young girl called Clara Tabuai that she had been raped by Peter Baira and two of his friends. When it was put to her by counsel for Peter Baira that she was raped only by Peter Baira and Lewis she agreed, but later added that "the third one held me". She said she did not recognise that third person and never saw his face.

In the trial judge's directions to the jury no direction was given as to the relevance of these mentions of the participation of a third man, nor was any complaint made about that by either counsel, but the foreperson of the jury asked for a direction in these terms:

"Your Honour, we'd like a clarification of Robyn's account of the third rape up to the arrival of Betty and also when did the second pair of hands appear on Robyn's shoulders".

It was pointed out in this Court that there was no suggestion on Lewis' behalf that the third man had intercourse with the complainant; the case was put that only one person had intercourse with her.

Mrs Richards said on behalf of Lewis, correctly, that the complainant indicated that she was not sure what shorts Lewis was wearing at the time and that she did not remember seeing any denim shorts. There was evidence from other witnesses that the appellant Lewis had been wearing denim shorts. But there was, one might reasonably infer, little or nothing made of this in the address to the jury on behalf of Lewis. The summing-up did not proceed on the basis that there was a serious issue about identification, nor did counsel for Lewis complain of that, at the trial. It seems safe to proceed on the assumption that Lewis' counsel did not stress the identification issue, nor submit to the jury that there was any real question about identification. But one finds this passage in the cross-examination of the complainant by Lewis' counsel:

" See I suggest that when in fact you were at the playground area that the situation was that you saw Patrick didn't you?-- He was there.

And there were other fellows there as well?-- No, I couldn't see anybody else.

A man called Ian was there?-- I didn't see Ian at all.

I see. See I suggest that really in terms of what happened near the swings and at the flying fox that your memory is not all that clear?-- Yes it is.

Now I suggest that certainly, remember Patrick at one stage coming along and putting his hand on your breast?-- No I don't remember him putting his hand there.

I suggest he touched your breast briefly and then walked away again?-- No.

I suggest that was the only contact that Patrick had with you?-- No.

See isn't it the situation that you remember Patrick sort of being in the vicinity?-- He was right there next to me.

I suggest that you have said for that reason that it was Patrick that had sex with you?-- He did.

Now, how do you say Patrick was dressed?-- I think I saw the - I saw chequered shorts and I think they were on Patrick. I wasn't quite sure who exactly I saw them on, but I remember seeing chequered shorts.

Now was it the person with the chequered shorts that had sex with you?-- He was standing around the front end, but I just saw the chequered shorts and that's all I could see at that moment.

And that was the person who had sex with you?-- No I didn't say that person was wearing the chequered shorts, I said I saw chequered shorts.

See I suggest in fact that - was this person who was wearing chequered shorts, did he have a shirt on?-- I'm not sure, I don't think he did actually.

What about Patrick, I think you said yesterday you thought he had a shirt, a t-shirt or a long sleeved shirt on?-- Yes.

You see I suggest that that night Patrick was dressed in cut off denim shorts?-- I can't remember any denim shorts, don't remember seeing denim shorts.

And I suggest he didn't have a shirt on?-- I don't remember seeing Patrick without a shirt. I'm sure he had a shirt on.

You see Miss Brough I suggest that what's happened is you've nominated Patrick because you thought the person that you saw in the check shorts was Patrick?-- No.

You really don't know?-- I do know. I already explained I saw Patrick in front of me and also somewhere in front of me I saw somebody with chequered shorts on.

You see I suggest to you that the extent of Patrick's involvement with you that night was to come along and see how you were when you were vomiting?-- No. "

"Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed." (561)

The method of reconciling the expressions "however the case is conducted" and "where its reliability is disputed" is not absolutely clear; but it appears that the proper practice is to give a Domican direction if a real question as to the reliability of the identification emerges from the evidence given, whether or not the address to the jury on behalf of the accused stresses the point. An example of this approach, to which Mrs Richards referred us, is O'Sullivan (C.A. No. 165 of 1995, 21 July 1995, unreported) where there was reliance on voice identification of the offender as well as other evidence, of somewhat doubtful reliability, implicating him. The case was fought on the basis that the witness who claimed to identify the accused's voice was dishonest, and it was not argued that she could have been mistaken. In the Court's opinion the jury might have given decisive weight to the voice identification; it was therefore held that the "particular difficulties associated with voice identification" should have been explained to the jury. The implicit basis upon which the decision was founded was in our view that, even though defence counsel made nothing of the point, it was inescapable that to pick out, as the witness in O'Sullivan claimed to do, the accused's voice from "one of four or five persons who were shouting more or less simultaneously" was a process which was fraught with risk of error; so that an issue about identification was, so to speak, inherent in the evidence. Here, in contrast, there was no very strong reason, assuming that the complainant's evidence was honestly given, to question her ability to identify Lewis, whom she knew well, as one of the rapists. But in view of the line taken in cross-examination, and the other circumstances to which we have referred, it is impossible to hold that there was no identification issue necessitating a Domican direction; no such direction was given. We would therefore allow the appeal in respect of Lewis, set aside his conviction and order a new trial.

Application for leave to appeal against sentence - Baira

Baira was sentenced in respect of the three rapes, the circumstances of which are explained above, and also in relation to three other offences, two being assault occasioning bodily harm and the other housebreaking. One of the assaults was upon Betty Baira who, as has been explained, intervened in response to a scream from the rape complainant. The applicant's reaction was to punch Betty Baira in the face and push her to the ground; when she ran off, the applicant chased her, but she hid herself. The other assault was on another woman, earlier in the same night; the applicant forced a window, climbed in, pushed, slapped and kicked her.

Each of the rapes attracted a sentence of 5 years imprisonment, and the assault on Betty Baira a sentence of 6 months to be served concurrently with the rape sentences. In relation to the other offences, the judge imposed 12 months imprisonment for housebreaking and 6 months for the assault; those two sentences his Honour ordered to be served concurrently with each other, but cumulative upon the 5 years imprisonment. In total the applicant was sentenced to 6 years imprisonment. He was 17 years of age at the time of the offences and 18 when sentenced. His criminal history discloses that he had been sentenced in 1994 for breaking, entering and stealing, in the same year for receiving and then for a further breaking, entering and stealing. Then, also in 1994, he was convicted of assault occasioning bodily harm and in 1995 of being in possession of suspected property. He had never before the present sentences been sentenced to imprisonment.

Although the case against the appellant Baira, particularly having regard to his sister's evidence, was very strong indeed, he put the victim through a trial and, more generally, has shown not the slightest remorse. To our minds, the applicant's assault upon his sister, who came to aid the rape victim, was a particularly bad additional feature; but the applicant's participation in three forcible rapes in itself merited a significant custodial sentence. The case is plainly not one in which this Court should alter the sentences fixed by the trial judge.

1. In relation to Peter Baira, that the appeal against convictions be dismissed and application for leave to appeal against sentence refused.

2. In relation to Ronald Patrick Lewis, that the appeal against convictions be allowed, the convictions set aside and that there be a new trial in respect of three counts of rape.

I have had the advantage of reading the reasons prepared by Pincus JA and am in agreement with his Honour's observations and conclusions concerning the appellant Lewis. I also agree with his Honour's conclusions and reasons concerning Baira's application for leave to appeal against sentence. However I find myself in disagreement with his Honour's conclusions as to Baira's appeal against conviction. The circumstances of the alleged offences appear adequately from the reasons for judgment given by Pincus JA, and I need not repeat them. My concern arises from the following passage in the learned trial Judge's charge to the jury (record - p. 255):

"You must bear in mind in looking at Peter Baira's evidence that he is an accomplice. You must always look carefully at the evidence of what is called an accomplice. In other words, a person implicated in the same offence or offences. You must always approach the evidence of an accomplice with caution because there is always the risk that an accomplice will either attempt to shift the blame entirely to some other person, or shift part of the blame to some other person to try and share the blame. So you must approach his evidence with caution in that regard."

In Robinson v. The Queen (No 2) [1991] HCA 38; (1991) 65 ALJR 644, the appellant had, at his trial for rape, given evidence that intercourse was consensual. The learned trial Judge said:

"Still on the subject of witnesses, you might think that some of them have an interest in the outcome of this case. Indeed you might think that one witness above all others has a greater interest than all the others in the outcome of the case. You might say, 'Well, this witness has a particular interest in the outcome of this case. We should look at his or her evidence closely, more closely than perhaps we would look at others.' That is a matter you have to bear in mind when scrutinising a particular witness's evidence."

"Another test was what interest does a witness have in the outcome of a case? If you thought a witness had a large interest in the outcome you, as the judges of the facts, might well conclude that you should scrutinise that witness's evidence closely. You might think - and it is a matter solely for you - that the accused had the greatest interest of all the witnesses you saw and heard and that, therefore, you should scrutinise his evidence closely."

"Notwithstanding the correctness of his Honour's directions concerning the onus and standard of proof, however, it is impossible escape the conclusion that the fairness of the trial was seriously impaired by the effect of his directions concerning the interest of a witness and the outcome of the case. The jury could hardly escape the conclusion that the appellant had 'the greatest interest of all the witnesses' in the outcome of the case. Indeed, his Honour had suggested to the jury that they might think that the appellant had a greater interest than any other witness in the outcome of the case. If the jury accepted that suggestion, as they almost certainly would have, his Honour's directions had the effect that the evidence of the appellant had to be scrutinised more carefully than the evidence of any other witness, including the complainant, for no reason other than that he was the accused. The unfairness of such a direction is manifest, particularly when the outcome of the trial inevitably turned upon the jury's preference for the evidence of a complainant against that of the accused. Moreover, the directions virtually had the effect that the appellant was to be treated as a 'suspect witness' in the same way as an accomplice, a complainant in a sexual case and a young child have been treated as 'suspect witnesses', that is, as witnesses whose evidence is to be accepted only after the most careful scrutiny ...".

"It follows that, if, as we think was the case, the jury would have understood his Honour's directions as meaning that the evidence of the appellant had to be scrutinised more carefully than that of any other witness, there was a serious misdirection in the summing up which went to the fairness of the trial of the appellant and which undermined the presumption of innocence."

This position was reinforced by the High Court in Stafford v. The Queen (1993) 67 ALJR 510. In that case the Court said:

"Any direction which directly or indirectly requires or invites an assessment of the reliability of the evidence of the accused or the relative reliability of the evidence of the accused and other witnesses by reference to interest or lack of interest in the outcome of the trial is likely to be understood by the jury as a direction or invitation to discount the evidence of the accused who will inevitably be seen as having a greater interest in the outcome of the trial than any other witness."

In Webb v. The Queen [1994] HCA 30; (1993-94) 181 CLR 41, the High Court considered the problem addressed in Robinson and Stafford in the context of a joint trial where one accused person had given evidence implicating the other. The Court considered that in such a case, the trial Judge should give a clear direction that the warning as to accomplices' evidence applies only to the use of that evidence in the case against the co-accused and not in the accused/witness's own case. Accepting that it is possible to achieve this result, I have concluded that it was not achieved in the present case. Although the direction was given in the context of the case against Lewis, it was in a quite general form. To evaluate the evidence in different ways for different purposes is not a common exercise for those who are not lawyers. Only the clearest direction would be likely to persuade the jury that the trial Judge was intending to draw such a distinction. In my view, there would be a strong inclination to believe that he could not possibly mean what he appeared to be saying. This curious problem arises out of the ill-advised form of s.632.

It is true that counsel did not request a redirection on this point. Normally, I would treat that as indicating that the overall effect of the charge was not unfavourable to Baira in this regard. However counsel also did not draw this potential problem to the attention of the trial Judge in support of the application for separate trials. Reference was made to Webb, but nobody appears to have realised that this problem was considered in that case, nor does anybody appear to have foreseen it as a possible problem here. I am therefore inclined to believe that counsel was either unaware of the problem or considered that there was no solution once the application was refused. Baira should not suffer from such an oversight. I would quash his conviction and order a new trial.

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Judgment (94 paragraphs)

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Cases Cited (4)