R v Mathe [2003] VSCA 165

R v Mathe [2003] VSCA 165 - VSCA 2003 case summary — Zoe

[28]

In support of this ground it was submitted that the complainant was a wholly unreliable witness whose evidence should not have been accepted beyond reasonable doubt by the jury, for three reasons. First, she was by her own admission affected by a combination of heroin and alcohol. Besides the facts already stated, reference was made to the fact that the last self-injection of heroin occurred shortly before the alleged rape; to her statement that after that injection she was "just relaxed, ... a bit tiddly from drinking as well", whilst in cross-examination she said that after her "last whack" she was "off [her] face"; and to the fact that she had not used heroin for the previous eight months. Secondly, she was unable to recall much of the lead up to what she alleged happened. Thus, she could not remember much about the train trip from Dandenong to Hallam, whether she had difficulty getting off the train, or whether there was any conversation before walking from the train. She did not recall being arm-in-arm with the applicant, and could not remember if she was attracted to him, "because I was off my face". Thirdly, the account she gave the police was demonstrated to be inaccurate by the video tape of part of the time spent on railway platforms and she conceded the account was inaccurate. In amplification it was pointed out that she agreed that much in her statement was inaccurate, including telling the police that she met the applicant on the train after leaving Spencer Street and before reaching Dandenong; that she made no mention to the police of boarding the Hallam train with the applicant arm-in-arm; that she said in court that she could not recall dropping her bag or her cigarettes falling out, whereas she agreed that she had told the police that that had occurred; and that she said in evidence that she was not assisted by the applicant in picking up cigarettes, whilst she conceded that she had told the police that he had assisted her. It was said that, significantly, the last two matters were not corrected by the complainant when she was asked in cross-examination if there were any errors in the statement to the police. Certain other matters were also relied on, such as an inconsistent answer about syringes, her allowing the applicant to kiss her twice without reproof (though she considered the advance unwelcome), that she did not use the word "rape" as part of her complaint to the police and did not at the time know its precise meaning[3], whereas she used the word to the witness Cacic; and that the police made a conscious decision not to have the swabs forensically tested, though Dr. Jakubowicz said that it was possible, albeit unlikely, that the insertion of a finger in the vagina could leave a DNA trace. Counsel did not persist in relying on the complainant's being scared of her sister and her father, one of the other matters listed in the outline of argument, because that was not put to her as a reason for fabricating the allegations.

[31]

Although it will be necessary to deal specifically with the question of penetration, an essential element for the count of rape, making my own independent assessment of the evidence[7], I think, for the reasons which follow, that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty on count 1 and on count 2. All the criticisms of the complainant and her evidence were before the jury, in the form of cross-examination and submissions, for their consideration, and were quintessential matters for consideration by a jury as the "constitutional" tribunal for the determination of questions of fact. To my mind there was no reason why they should not accept the complainant's version of the abduction and rape. The criticisms of her statement to police leave her evidence in court untouched. Most of the criticisms of her evidence in court relate to what was called the "lead-up" to the alleged offences. An exception to my last two statements may be the matter of cigarettes. But it is clear from what the sisters found on returning to the scene on 23 September that cigarettes had in fact fallen out of the complainant's bag. If the applicant did in truth help the complainant to pick them up, the effect of that was a matter for the jury's consideration. It did not require verdicts of not guilty. Thus, most of the specific criticisms leave untouched the complainant's evidence of the alleged offences themselves. There is, however, the general criticism of the complainant's evidence that it related to events occurring when she was affected by heroin and alcohol. There was no expert evidence as to the effect of heroin, and in particular of heroin taken at the times and in the quantities revealed by the evidence, upon a person's powers of observation and memory[8]. It was, like the effect of alcohol, a matter for consideration and assessment by the jury as persons of the world. The effect of each was clearly put before them in submissions by counsel for their consideration and determination. As regards the failure to have the swabs analysed, even if that be considered unsatisfactory, if the result of analysis had been negative that would not have gone in disproof of guilt, for the evidence of Dr. Jakubowicz referred to earlier showed that the insertion of a finger into the vagina was unlikely to leave a trace of DNA, though that was possible.[9] That is, a negative result would have been quite inconclusive.

[46]

The passage, with its manifold criticisms and prominent position, is most unfortunate. But the question is whether, on the ground of that passage and the other words and conduct relied on, taken cumulatively, and taken with the points made under ground 1 in relation to the rape count and the fact that the Crown case on it ultimately depended on the evidence of the complainant alone, "there was", within the third limb of s.568(1) of the Crimes Act, "a miscarriage of justice". In the end, whilst recognising the force of the contrary view, I am not persuaded that there was. It could not be said - and I do not think that it was argued orally - that his Honour denied procedural fairness during the running of the trial, for he was most careful to afford defence counsel every opportunity to make submissions on any point on which he was called upon to rule. Nor, turning to the other branch of natural justice, which was relied on orally, am I persuaded that the charge of ostensible bias on the part of the judge has been made out or that he indicated to the jury his view as to the result (as opposed to his view about, for example, five points made by defence counsel). Rather, as it seems to me, this was a case where, as from time to time happens, the trial judge, perhaps with a strictness of approach, picked upon instances of looseness in counsel's questions or address and where, with justification in most cases at least (despite counsel's view), rulings went almost universally against the accused. The cases show that considerable latitude is allowed to judges in the conduct of a trial. So far as the three-page passage at the virtual commencement of his Honour's charge is concerned in particular, I have come to the conclusion that its terms and position did not constitute or give rise to a miscarriage of justice, even when taken with any other matters of which complaint may justifiably be made. This is so, I consider, even in the case of the rape count. In reaching that conclusion I have had regard, amongst other things, to the overall correctness of the passage, to the fact that it appeared in its logical position in the charge, and, especially, to the nature and non-centrality of the statements by counsel that it dealt with.

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Judgment (156 paragraphs)

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Cases Cited (2)