R v Meyer [2007] VSCA 115

"Also evidence which is capable of being relied upon [by] you for distress is evidence [given by the complainant] of her conduct after that first call in getting dressed, packing her bag and sitting with her back against the door for the time it took Mr Marotta to drive to Melbourne from Wangaratta."

"If you do find that [the complainant] was distressed, then you can rely on that evidence of distress as independent support for [the complainant's] evidence that she was sexually assaulted, that is, raped, and indecently assaulted."

9 The error is obvious. It is rudimentary that a complainant's testimony is incapable of constituting independent evidence in support of her own allegations.[1] As Barton J put it in Ridley v Whipp,[2] the notion that a complainant is capable of corroborating herself by her own evidence -

"... reminds one of the familiar simile of a man trying to lift himself off the ground by his bootstraps. If one part of a person's evidence is relied on for corroboration of the remainder, the answer instantly arises that the part relied on is as much under the original reservation as the part sought to be corroborated."

10 Understandably, senior counsel for the Crown does not suggest otherwise. He argues, however, that, despite the judge's error, there was no miscarriage of justice. He points to the fact that Stephen Marotta and his colleague gave independent evidence of the complainant's distress, and he submits that if the jury accepted Stephen Marotta's evidence of distress they are unlikely to have regarded the complainant's testimony of distress as adding much to it, and on the other hand, if the jury rejected Stephen Marotta's evidence of distress, they are unlikely to have accepted the complainant's evidence about it. Either way, in counsel's submission, the judge's misdirection probably made no difference.

11 Counsel's argument is ingenious, but in my view it is not persuasive. As I see it, there are a number of ways in which the misdirection may have made a difference. First and foremost, this was a case of oath against oath, and therefore anything which the jury might have taken as providing independent support for one side or the other could have tipped the balance. For example, the jury may have accepted that Stephen Marotta was a witness of truth, and yet not been satisfied, on the basis only of what he and his friend said they saw and heard, that the complainant was distressed. When, however, there was added to the equation the judge's direction that the law regarded the complainant's evidence of distress as something which provided further independent support for her allegations of sexual impropriety, the jury may well have been swayed. The illogic of the direction would not have been apparent to the jury. They would have accepted at face value what the judge told them was the law.

12 Secondly, the complainant's evidence of having sat behind the bedroom door was not the only part of her testimony which the judge mischaracterised as independent support for the complainant's evidence that she was sexually assaulted. The judge also told the jury that:

"... the evidence which, if you accept it, is capable of demonstrating distress includes the description by [the complainant] of how she felt when she woke and felt the wetness on her chest and neck and smelt the odour of semen, of her going immediately to the bathroom and ringing Mr Marotta from there."

Later the judge said, with reference to that among other evidence:

"All of those matters are matters that you can take into account in deciding whether you accept they demonstrate distress, and if so, whether you consider that that distress therefore is evidence, independent evidence, to support [the complainant's] - to support the charges that [the complainant] was raped and indecently assaulted."

With respect, that was another error that was capable of having a significant effect on the jury. In the words of Sperling J in R v E:[3]

"To think that evidence of complaint could be treated as corroboration may be an easy mistake in circumstances where corroboration is in the air, but it is a monumental mistake. To think that evidence of complaint may have the same standing as direct evidence of the fact originating from a source other than the complainant bespeaks a large measure of confusion."

13 Thirdly, as counsel for the applicant points out, the judge's misdirection was not limited to mischaracterisation of the complainant's evidence of distress as independent support for the complainant's allegations. The judge compounded the error by instructing the jury that:

"... evidence of distress when a person is alone or not aware they are being observed, is stronger than evidence of distress seen when a person is communicating their distress to somebody, because that tends to negate the possibility of simulated or pretended distress."

14 The effect of that further direction was surely to convey to the jury that the law required them to treat the complainant's testimony of distress as a more potent form of independent confirmation than Stephen Marotta's evidence of distress, and that they could therefore be better satisfied, on the basis of what the complainant said about her distress, that her allegations against the applicant were true.

15 Counsel for the Crown submits in the alternative that, if the judge's directions on distress were misconceived, the proviso should be applied. He contends that the Court may be satisfied on the whole of the record that the applicant was proved beyond reasonable doubt to have committed the offences of which the jury found him guilty. He stresses, amongst other things, that the applicant's version of events was most unlikely; that there had been no previous sexual relationship between the complainant and the applicant; that the complainant made complaint, almost immediately after the alleged offence, in terms which left no room for doubt that she was complaining that she had been raped; that she left the home of the applicant in the early hours of a cold winter morning, without shoes and without all her equipment, apparently running, distressed, into the arms of Mr Marotta; and her testimony was not shaken in cross-examination. In counsel's submission, despite the fact that the Court has not seen or heard the witnesses, it can be confident that what the complainant said was true and established beyond doubt that the applicant was guilty of the offences alleged.

16 There is considerable force in those submissions. But, on balance, I do not accept them. This was a case of oath against oath and, perhaps more importantly, the erroneous direction given by the judge went directly to the assessment of the complainant's credit in the determination of that contest of oath against oath. In those circumstances, I consider that, apart from anything else, the natural limitations inherent in working on the basis of the record alone require us to conclude that we cannot reach the necessary degree of satisfaction. In a case of this kind, I consider that one needs to see and hear the witnesses give their evidence, in the way that the jury did, and that anything less would not be fair to the applicant.[4]

17 I add for the sake of completeness that we have had the benefit of a judge's report which shows that, before the judge directed the jury in the manner that she did, her Honour very properly presented counsel with a draft of the directions that she proposed to give to the jury and sought counsel's submissions. Surprisingly, however, neither the prosecutor nor defence counsel at that stage took exception to what was proposed or even suggested that it may be productive of a problem. After the judge had given the directions to the jury, defence counsel took exception on the basis that the judge had erred in instructing the jury that the complainant's evidence of distress was independent evidence that the complainant had been sexually assaulted, but at that point the judge refused to redirect because, as she put it, counsel had been given an opportunity to object and they had not done so, and because she had directed the jury that -

"it was for them to find what evidence they accepted and what they rejected, but evidence which was capable, if they chose to use it in that way, of amounting to distress included, amongst other things, the sitting against the door."

18 If I may say so with respect, the judge may well have experienced a degree of frustration over the way in which counsel had behaved. After all, her Honour had done exactly as she should have done in exposing her intentions to counsel before delivering her charge, and she was entitled to expect that they would give her every assistance in ensuring that it was correct. Instead of that, she got no assistance from the prosecutor and no assistance from defence counsel until after she had delivered her charge, at which point her Honour may perhaps have thought that it would be productive of imbalance to go back and redirect. Of course, mistakes can and do happen, even amongst very experienced members of the criminal bar, but it is disappointing, and perplexing, that a problem which was so easily avoidable was allowed to arise in this case.

19 That said, the failings of counsel are not ordinarily sufficient reason to deprive an accused of a fair trial.[5] The result of what happened was that the jury were misdirected on the subject of what used to be called corroboration in an oath against oath trial for sexual offences. In the scheme of things, it is difficult to conceive of circumstances in which an error in directions concerning corroboration would more likely be productive of critical consequences.

20 It is unnecessary to consider the remaining grounds of the appeal. For the reasons I have given, in my view the application for leave to appeal should be allowed and the appeal should be treated as instituted and heard instanter and allowed. I would quash the convictions the subject of appeal and order that a new trial be had.

21 I agree that the conviction of the applicant should be set aside and a re-trial ordered. I do so for the reasons advanced by Nettle JA in his judgment.

22 I also agree, for the reasons advanced by Nettle JA, that the appeal should be allowed and that a new trial be ordered.

23 The impugned direction entailed far more than a reference to the complainant sitting with her back against the door. The jury would have understood the complainant's distress to include her evidence that she ran from the bedroom to the bathroom, ran back from the bathroom to the bedroom, positioned herself against the door, as she explained, because she was scared the applicant may have walked in again, and her subsequent very hasty departure from the house. The particular significance of that evidence of distress was its consistency with the complainant's

account of non-consensual sex and its inconsistency with the applicant's defence. None of it was capable, in law, of constituting corroboration.

24 The direction that such evidence was independent evidence supporting the complainant's testimony constituted a serious miscarriage which cannot be saved by the application of the proviso. The misdirection may have affected the jury's preference for the complainant's account.[6] Consequently, in considering whether the proviso should be applied, this Court cannot take into account the jury's verdict[7] or its view as to the complainant's credibility which is inherent in its verdict. For these and the reasons given by Nettle JA the proviso cannot be applied.

1. The application for leave to appeal against conviction is granted.

2. The appeal is treated as instituted and heard instanter and is allowed. The conviction sustained by the appellant in the court below is quashed and the sentence passed thereon is set aside.

4. The appellant is remanded in custody pending the new trial. However, this will not prejudice any application for bail.

5. The Court grants to the appellant an indemnity certificate pursuant to s 14 of the Appeal Costs Act 1998 and directs that there be included in that certificate any additional costs that the appellant will pay, or will be ordered to pay, as a consequence of the order for a new trial.

[1] R v Christie [1914] AC 545 at 557; R v Whitehead [1929] 1 KB 99 at 102; Eade v The King [1924] HCA 9; (1924) 34 CLR 154 at 157; Heydon, Cross on Evidence, Aust. Ed. at [15185].

[2] [1916] HCA 76; (1916) 22 CLR 381 at 389.

[3] (1996) 39 NSWLR 450 at 460.

[4] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 at 315[41]-[45]; at[5]; Darkan v The Queen [2006] HCA 34 at [94]; R v Hackett [2006] VSCA 138 at [32].

[5] KRM v The Queen [2001] HCA 11; (2001) 206 CLR 221 at 255[101]; Doggett v The Queen (2001) 208 CLR 343 at 382[147]; cf. TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at 148[78].

[6] Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 at [50], Rajakaruna v R (No 2) [2006] VSCA 277 at [71].

[7] Weiss at [43].