R v Matthews [1998] VSCA 2

8. In his record of interview the applicant admitted that they had had sexual intercourse and that he had bitten her nipples but asserted that she had asked him for sex. He said that they had gone to the Front Yard so that he could ring his brother. He intended to tell his brother about his exploits with the complainant. It was that that had made the complainant angry and he had subsequently received death threats.

11. The grounds of appeal against conviction as amended by order of the Registrar made on 19th May 1998 are:

1. The verdict of the jury was unsafe and unsatisfactory.

2. The learned trial judge erred when, in directing the jury upon evidence of complaint, he said, "... the legal theory being that those who are raped complain of it and those who are not raped do not complain of it".

3. The learned trial judge erred in not discharging the jury upon its becoming apparent that one juror may have affected other jurors by her concern for the welfare of her children.

17. Mr. Tehan, Q.C., who appeared pro bono for the applicant, argued ground 3 first. The decision not to discharge the jury, of which that ground complains, was made on the last day of a six-day trial. The jury had retired to consider their verdict at 12.45 p.m. the day before. When the judge decided to sequester them overnight and explained what that would involve, a juror expressed concern that her two young children would have to stay with her sister and her husband and there would be difficulties getting them to school the following morning. It was explained that arrangements could be made through the court staff and the juror appeared to be satisfied. If so, her satisfaction did not last. At 2.55 p.m. the next day the judge reminded counsel that there was a juror who was troubled about her children. His Honour continued:

"It seems that she is a member of that growing class in the community, a single mother, and she has become increasingly distraught about the care of her children, to the point where it seems she's demonstrating behaviour which I think is highly deleterious to the jury's continued deliberations, and in fact I think that it's probably now got to the point where some doubt would hang over the jury's verdict were they to deliver one. Unless persuaded to the contrary, I propose to discharge this jury. I think that's unfortunate, but it seems to me that more unfortunate would be any doubt as to whether the jury had not been able to fulfil their function by objective discussion of the issues."

21. After saying that no one wanted a hasty, ill-considered or compromised verdict as a result of the jury's being put under pressure or even being made angry by one of their members, his Honour expressed the view that the relevant juror ought not to be serving on juries at all and said that he proposed to take such steps as were necessary to see that she did not serve on another. (In the event, when she was discharged, she was excused from service for the next ten years.) Reference was then made to the fact that she had persistently rung and asked for something to be done about her children. The judge said that such information as he had indicated that she was incapable of continuing to consider her verdict while she was worried about her children and away from them and that that situation was "almost certainly interfering with the capacity of her fellow jurors to consider a verdict at all". His Honour said that he had contemplated the possibility of discharging her and proceeding with 11 jurors, but did not wish to do so, partly because he feared "that she has already compromised the situation".

24. The prosecutor submitted that, unless enquiries of the remaining jurors showed that the position had indeed been compromised, the juror should be discharged and the trial should proceed. Counsel for the applicant took instructions and joined in that submission. The judge referred to the juror's emotional state and said that it was plain that her difficulties had become "a matter of concern to the jury generally". The tipstaff had reported that it was his impression that the jury might, as a result, have been deflected from dispassionate consideration of the case. His Honour expressed a concern that it might be too late, simply by discharging the juror, to return them to the proper discharge of their duties. He did nevertheless say that they appeared to be a sensible jury and that he was attracted to the course that counsel jointly proposed, which counsel for the applicant again asked the judge to adopt.

27. When the jury entered the court at 3.21 p.m. his Honour enquired of the juror whether her concerns about her family were seriously interfering with her capacity to bring her mind to bear upon the issues in the trial. She replied that that was not so, because she had made her "decision". The judge then explained to the jury, in eloquent terms, the importance of the task that they were called upon to perform. He concluded by referring to the courses of action that were open to him and in particular those of discharging one of their number and continuing with the trial and discharging the whole jury without a verdict. He asked the jury, through their foreman, which of those two courses they thought it would be better for him to adopt. He said that he had formed a high opinion of them as a sensible, hard-working and thinking jury and that he would pay great attention to anything they told him. The jury retired briefly. When they returned the foreman said that they were "making steady but slow progress towards a verdict" but that they believed that the relevant juror should be excused on compassionate grounds. His Honour adopted that course. The jury resumed their deliberations at 3.50 p.m. and returned a verdict at 6.22 p.m. In the meantime a portion of the evidence was, at their request, replayed to them.

30. Mr. Tehan submitted that the whole jury should have been discharged in the circumstances that I have described. The judge had several times expressed his own fear that the position was irretrievably compromised and there was clearly a strong factual basis for that apprehension. The danger was made greater by the fact that the juror had already made up her mind and had done so when it was focused on other issues and there was an extraneous reason for her to hasten to a conclusion. Assuming that her decision was that the applicant was guilty, she may already have influenced one or more of the other jurors by a view not properly arrived at and that influence may not have been dispelled by her discharge. Counsel submitted that the judge had erred, whether one applied the traditional test of a high degree of need or adapted the test applicable to reasonable apprehension of bias. See and compare R. v. Harrison [1957] VicRp 15; [1957] V.R. 117; R. v. Boland [1974] VicRp 100; [1974] V.R. 849 at p.866 and Webb v. R. [1994] HCA 30; (1994) 181 C.L.R. 41. In my opinion the test is still whether there is a high degree of need, but a reasonable apprehension of bias is one of the circumstances that constitutes a high degree of need. See R. v. Holt and Merriman (1996) 87 A.Crim.R. 82 at p.86.

33. That test was not satisfied in the present case. In the first place, the learned and very experienced trial judge was entitled to revise his provisional opinion upon further reflection and in the light of the jury's answer to his question. He did not in any sense abdicate his function but, having formed a favourable opinion of the jury's reliability and common sense, paid heed to what they said. Secondly, the course of discharging the relevant juror and proceeding with the trial was undertaken at the joint request of both parties. They, too, were in a better position than we are to assess the danger the juror posed to the integrity of the trial. Ground 3 is not made out.

36. I turn to ground 2. The impugned passage in the charge, to which no exception was taken at the trial, is very short but it forms part of a much longer portion. To set the scene and to describe the first complaint, which was disputed, and the second complaint, which was not, I shall set out most of the relevant part of the charge. (I have re-paragraphed it to make it easier to read, without altering the sense, and italicized the words referred to in ground 2.) After referring to the evidence of the offences themselves, his Honour said:

"The parties then went to [Front Yard]. The prosecutrix says that she whispered that she had been raped to a youth worker there while the accused was trying to use the telephone, and that he called out to her not to say anything to anyone. They then left Front Yard and returned to Swanston Walk, where they separated somewhere near the Kentucky Fried Chicken shop.

The prosecutrix then returned to Front Yard and told Felicity Brown that she had been raped. The time between the first visit and the second visit was described variously, but it is said by her to have been ten minutes or 30 minutes, and by others to have been 30 minutes. Felicity Brown gave evidence that she saw the prosecutrix and the accused arguing in the main foyer, but was herself in her office, out of hearing and not in a position to be whispered to. She says they left the office, one behind the other, not one pulling or holding the other. She also, however, says that the prosecutrix returned alone a short time later in a tearful state and complaining of rape. Both sides rely upon this evidence.

You will recall my direction to you, at the time when the evidence was given, as to the way in which you can use such evidence. First of all, it plainly is not independent evidence from another source supportive of the prosecutrix's version of events, because it comes from her, it is her complaint. It would ordinarily be excluded from evidence as a self-serving statement. But in a case of this kind, it is allowed to be given in evidence for one single purpose, but nevertheless, perhaps an important purpose; that of testing the consistency of behaviour of the prosecutrix, the legal theory being that those who are raped complain of it and those who are not raped do not complain of it. So that the substance of the matter is that you are entitled to look at the behaviour of the complainant, including what she says, in order to determine whether she has behaved consistently with the story that she was raped and for no other purpose.

Both sides rely upon the evidence, of course. The defence relies upon it by saying: 'Well, here you are, you have the accused and the prosecutrix, straight after this act of intercourse occurred, which she says was rape, walking into a place which is full of youth workers and people who might be interested in dealing with any such complaint, which is an unlikely thing for somebody who has raped a girl to do in the first place, and next there is no complaint whatever from her. Her attempt to suggest there was one by saying she whispered something to somebody has come undone because she selected Felicity Brown as the person to whom she whispered something and Felicity Brown wasn't even within whispering distance, and inquiry as to whether it mightn't have been somebody else has turned up no card in her favour'. 'So', says the defence, 'you can assume that she walked in there, she spent some time there and she walked out again and she made no mention of rape, therefore she did not complain and was not behaving consistently with the event of rape having occurred'.

The Crown, on the other hand, says you should accept her evidence; there has been some mistake as to who she whispered to, but at the first opportunity, when she was in there, terrified of the man who had just raped her, she indeed whispered to some youth worker that she had been raped. Nothing was done about it, but the accused dragged her out back onto the streets, but at the first opportunity when he went away from her, near the Kentucky Fried Chicken shop, she went straight back and complained vigorously that she had been raped. So, the Crown says, there were two complaints; one the whispered one and one the final one, and that is conduct consistent with the allegation which she makes.

That is the way both sides put the case. The facts, of course, you have to determine. Did she say anything on that first occasion; how long was she away; was she pulled into the place and out of it, or was she a free agent there?"

His Honour referred to the medical examination of the complainant, her ingestion of Rivotril and her overnight stay at the Royal Melbourne Hospital. He continued:

"The accused was interviewed at length by Senior Constable Loveridge and the tape recording of that interview is Exhibit D. You can play it for yourselves as often as you like. I do not propose to read it to you or deal with it in detail. In general, however, the accused's version of events was that he and the prosecutrix had intercourse, both oral and vaginal, in the alleyway after she had offered him 'a root'. He agrees also, that in the course of these intimacies, he bit her breasts. The accused says that he told the prosecutrix that he was going to tell Aaron, his brother and the prosecutrix's boyfriend at the time, about their having intercourse. This caused the prosecutrix to make up the story about having been raped by him and to make various threats against him and others."

47. As the Full Court explained in R. v. Freeman [1980] VicRp 1; [1980] V.R. 1 at p.6, lines 42-46, evidence that the alleged victim of a sexual assault complained of it at what is usually called the first reasonable opportunity after the event and evidence that she did not are admitted for similar reasons. In the latter case, the jury may take the complainant's delay in complaining into account in deciding whether to accept her evidence, but they must remember that there may be good reasons why a victim of a sexual assault may delay or hesitate in complaining about it. Section 61(1)(b) of the Crimes Act 1958 was in a different form at the time of the trial but the difference is not material. The second part of what his Honour said was favourable to the applicant. Where there is admissible evidence of complaint, the jury may take that into account in deciding whether to accept the complainant's evidence: see the immediately preceding paragraph in Freeman's Case, especially the sentence at lines 38-41. The purpose of leading the evidence is to buttress the complainant's credibility, but the jury are not obliged to regard it in that light: cf. R. v. Lillyman [1896] 2 Q.B. 167 at p.177; Kilby v. R. [1973] HCA 30; (1973) 129 C.L.R. 460 at pp.469 and 472; M. v. R. [1994] HCA 63; (1994) 181 C.L.R. 487 at p.514 and Crofts v. R. [1996] HCA 22; (1996) 186 C.L.R. 427 at p.434. Just as they may think delay in complaining completely irrelevant, so they may think that the making of a complaint does not, in the circumstances of the case before them, make the alleged victim's account more credible.

50. The danger in the impugned direction was that these commonsense propositions were elevated to the level of a legal theory. The jury had been told, in the usual way, that they had to accept the judge's directions on matters of law. His Honour did not, however, say that those who complain are taken to have been raped. He said that those who are raped complain. At the hearing of the application, I was inclined to think that the words in italics were just a slip that did not bring the case within any of the opening words of s.568(1) of the Crimes Act. As Hayne, J. said in Suresh v. R. [1998] HCA 23; (1998) 153 A.L.R. 145 at para.64, there was neither a "wrong decision on any question of law" nor a "miscarriage of justice". The relevant words were both preceded and followed by statements to the effect that the sole purpose of receiving the evidence was to test the consistency of the complainant's conduct with her account in the witness box: cf. Jones v. R. [1997] HCA 12; (1997) 143 A.L.R. 52 at p.53 lines 15-18. But further reflection has led me to conclude that the slip did matter in the particular circumstances of this case.

53. In a report furnished to the Court pursuant to Rule 2.27 of the Criminal Appeals and Procedures Rules 1988 the learned judge said:

"Having regard to the character of the persons involved it seemed to me as likely that they went down the lane to fornicate as to smoke cannabis. However, the jury seemed to me to be composed of thoughtful and responsible people who devoted careful attention to the trial and deliberated lengthily. They may well have observed in the evidence something which escaped my merely casual appraisal of it. I have no cause to think the verdict unsafe and unsatisfactory."

That reflects a comment made by his Honour in the course of the charge that the reactions and behaviour of people like the applicant and the complainant were not predictable or readily comparable with those of people leading ordinary lives. He observed that their style of life might lead the jury to consider "that one version of events is as possible as the other and that, in the absence of some independent support, it would be dangerous to believe one version rather than the other". He added that it was not merely a matter of preferring one story to another; before they could find the applicant guilty, they had to be prepared to reject his account and accept beyond reasonable doubt the version given by the complainant.

59. It will be apparent from the foregoing that this was a case where the evidence of proximate complaint was very important. It is the principal reason, together with the jury's advantage in seeing and hearing the complainant give her evidence, why I would not uphold ground 1.

62. In R. v. Stoupas (1997) 94 A.Crim.R. 525 there were a number of distinct errors in the charge: see pp.530-535. The slip here is not comparable, but there are two observations in the judgment of Winneke, P. that are apposite. The first, at p.531, contains a reference to the jury's thinking that they were obliged to use the evidence of complaint as evidence which was consistent with the conduct of the complainant. In the present case they were told that the legal theory was that those who are raped complain of it. The same phrase had not been used when his Honour had directed the jury at the time the evidence was received, but they had been told that "the law says that if somebody has suffered a sexual assault of the kind which is alleged here, then they will complain about it". The second observation, at p.535, is that that, too, was a case where the credibility of the complainant was very much in issue. See also the paragraph beginning "I cannot agree ..." later on that page and the joint judgment in Jones v. R. at pp.53-54. They show that neither the failure to take exception nor the proviso may be invoked with success in this application.

65. I would therefore uphold ground 2, but I wish to make quite clear the basis on which I would do so. In R. v. Saragozza [1984] VicRp 15; [1984] V.R. 187 at p.196 the Full Court said that a single word can bring down a charge, although it did not do so on that occasion. Should the other members of the Court agree in my conclusion, the ratio decidendi of this case will not be that the reference to "the legal theory" was enough on its own to bring down this charge or even that it would do so whenever the credibility of the complainant was very much in issue. It might well be in other cases that such a reference simply would not matter or at all events that it would not deprive the accused of a chance of acquittal that was fairly open to him. In this case, however, it was essential for the jury to understand that the law did not attach any greater significance to the complaint evidence than they themselves were disposed to give it. The reasons for that appear from his Honour's report to us and his comment to the jury, as well as the matters to be mentioned in connexion with ground 1.

68. I have already foreshadowed that I do not consider that the verdict was unsafe and unsatisfactory, sc. that it was "unreasonable or [could not] be supported having regard to the evidence" within the meaning of s.568(1). Mr. Tehan identified a large number of reasons why a jury might well have rejected the Crown case. I have considered all of them. I mention only some. There was a dispute as to whether the complainant was affected by Rivotril at the time of the alleged offences, but she admitted consuming 100 tablets over the course of the next few hours. Rivotril is a drug prescribed for epilepsy, which affects the patient's memory. The complainant was supposed to take one tablet a day. She agreed that she took them for recreational purposes and that she had gaps in her memory of that day. She had a very large number of convictions for offences of dishonesty. Before she was stopped in her own interests, she admitted that she had spoken to someone about having the applicant murdered. It is unclear whether that would have been as a reprisal for the offences or because he had boasted of his sexual exploits to his brother. She said that she complained to the same woman at the Front Yard on two occasions, but Felicity Brown remembered only one complaint. There were

improbabilities in her evidence and, although the applicant stood mute at the trial, he had given an innocent version of events in his record of interview that was consistent with most of the Crown case.

72. In my opinion it was nevertheless open to the jury to be satisfied to the requisite standard that the applicant had committed the offences. The advantage of seeing and hearing this complainant give her evidence is not to be underestimated. The complaint that was backed up by the witness from the Front Yard was important and may have been decisive in establishing her credibility. This was not a trial, like that in R. v. Emmerson (unreported, Court of Appeal, 12th September 1997), where the accused could not shed light on what had happened. If he had given evidence, it would have been more than a bare denial of wrongdoing. Compare the judgment of Hayne, J.A., in which Charles, J.A. concurred, especially at pp.1 and 3.

75. For these reasons I would grant the application for leave to appeal against conviction, quash the convictions and direct a new trial to be had. It is unnecessary to consider the application for leave to appeal against sentence.

80. I have had the benefit of reading in draft the reasons for judgment of Callaway, J.A. For the reasons stated by his Honour, I agree that whilst grounds 1 and 3 of the application for leave to appeal against conviction should fail, ground 2 should succeed. The terms of the impugned direction may well have conveyed to the jury that it had no alternative but to treat the evidence of complaint as evidence which was consistent with the complainant's version of events and, given the strong challenge made to the credibility of the complainant, it was vital that the jury appreciate that the law did not oblige it to treat the complaint evidence in any particular way. In this case, it was necessary for the jury to be given to understand that it was for it to decide what significance was to be attached to that

evidence.Accordingly, I agree that the application for leave to appeal against conviction should be granted, that the convictions be quashed and that there should be a new trial.

86. I agree that the appeal should be allowed for the reasons stated by Callaway, J.A.