R v Noble [2000] QCA 523

Director of Public Prosecutions (Qld) for the respondent

[1] McMURDO P: I have read the reasons for judgment of Pincus JA and am in general agreement with them. I wish only to add the following.

[2] I agree that the learned primary judge erred in insisting that the defence witness Barry express his claimed recollection of a 1982 conversation with the complainant in direct speech. After many such interventions, the judge went so far as to adjourn the trial so that Barry could discuss his mode of giving evidence with his barrister.

[3] The reference from Wigmore on Evidence[1] quoted in para [18] of Pincus JA's reasons was cited with approval in US v Castro:[2]

"... in practice verbal precision cannot be expected when the source of evidence as to an utterance is the memory of a witness. See generally 7 Wigmore on Evidence s2097 at 608-11 (Chadbourne rev. ed. 1978). However, courts historically have required a party offering testimony as to an utterance to present fairly the 'substance or effect' and context of the statement. In other words, while verbal precision may be unnecessary, the testimony 'should at least represent the tenor of the utterance as a whole, and not mere fragments of it.' Id. s2099, at 618"

[4] It is quite proper for lawyers to prepare a witness who is to give evidence in court by explaining that, if able, the witness should give evidence of the precise words used. If the witness is unable to do so, then the witness must give evidence of the whole substance or effect of those words, consistently with their oath or affirmation. As Pincus JA points out, care must be taken not to, even inadvertently, suggest words to a witness.

[5] The primary judge's intervention was not limited to the defence witness, Barry. His Honour intervened in a similar manner in the evidence of two prosecution witnesses, the complainant and her friend, Ms Starling. These witnesses were demonstrably more able to comply with the judge's directions than was Barry.

[6] The learned judge's repetitive interventions to insist that Barry give his evidence of the complainant's words in direct speech and the judge's consequential adjournment of the trial during Barry's evidence had the potential to confuse not only Barry but also the jury, distracting them from their duty of following and assessing the evidence.

[7] Nevertheless, I agree with Pincus JA that, in the end, this judicial intervention did not result in any miscarriage of justice. Barry was a good friend of the appellant and looked on him as a father figure. Barry gave evidence of two conversations in chief. First, in 1982, at the school across the road from the appellant's home where a barbeque was taking place, the complainant said she wanted to move out and she would accuse the appellant of tampering with her if he did not let her. Second, about a month to six weeks later, perhaps on the night of the complainant's 15th birthday party, the complainant said that the plan to stitch up the old man [the appellant] had worked. In cross-examination, Barry gave evidence for the first time of a third conversation: the complainant and her sister, Tania, threatened to report the appellant to police for molesting the complainant unless the appellant let her live with Tania. The trial transcript records that Barry agreed that this last conversation occurred first in time, which seems logical and plausible. Later in his cross-examination he denied saying this. It has not been suggested the record is inaccurate.

[8] This third conversation was not put to the complainant in cross-examination, was inconsistent with the evidence of the appellant and was not included in Barry's evidence at the appellant's earlier trial on these charges in October 1999. Barry's evidence as to the third conversation was given at a time when he was not subject to interruptions from the judge. In those circumstances a reasonable jury could be expected to reject Barry's evidence as untruthful or at least as confused and unreliable. For these reasons and for those given by Pincus JA, I am satisfied that Barry's confused evidence was not caused by the judge's earlier insistence on the use of direct speech.

[9] The complainant's evidence was that the last of the three offences occurred in "April, May '82 around - it was just before I turned 15." The complainant's 15th birthday was on 1 May 1982. Her complaint to Ms Starling which the prosecution claimed was recent was made on the day of her 15th birthday party, up to a month after the last offence occurred.

[10] The complainant was not close to her mother and did not confide in her.

[11] Defence counsel appears to have deliberately decided to take no objection to the admissibility of the evidence, probably because it was potentially inter-connected with Barry's evidence.

[12] The learned judge correctly told the jury in his summing up that there was no fresh or recent complaint as to the first two counts. He pointed out to the jury that the complainant made the claim to Ms Starling about a month after the occurrence of the last count and that whilst the prosecution submitted that it was a complaint made at the first opportunity showing consistency of conduct and supporting her credibility, the defence submitted that there was no fresh complaint and that this showed her inconsistency of conduct and lack of credibility. The judge left the matter for the jury to determine. In these circumstances, the evidence of the complaint was admissible and the judge's careful directions properly dealt with potential matters of concern: see R v LSS,[3] R v C[4] and R v Byron.[5]

[13] I agree with Pincus JA on the remaining issues. The appeal against conviction should be dismissed.

[14] PINCUS JA: The appellant was convicted on 5 April last on three counts of having unlawfully and indecently dealt with a girl. The first count, which alleged the period between 1 June 1979 and 1 January 1981, alleged that the complainant was under 14 years of age. The second, alleging a date between 31 December 1978 and 1 July 1981, alleged that she was under 16 years of age, as did the third, which alleged a date between 1 March 1981 and 1 May 1982.

[15] The Crown case depended upon acceptance of the evidence of the complainant; in addition, the Crown relied upon evidence of a fresh complaint she made in 1982. The appellant gave evidence denying the commission of the offences alleged and evidence from another witness, Barry, about conversations alleged to have taken place, it appears, in 1982 or 1983. The appeal is based on four arguments, dealt with under the heading "Direct Speech", two complaints that evidence was wrongly admitted, and an argument that the jury might not have understood the burden of proof.

It was argued for the appellant that presentation of his case was hampered by judicial interventions in the course of Barry's evidence. The conversations which Barry claimed to remember were alleged to have taken place long ago. If they truly occurred, only their substance would have been remembered; no-one, or at least hardly anyone, could remember accurately the words used in a conversation which occurred 18 years before; all Barry recalled, according to him, was the substance of what was said. Yet when Barry attempted to state what he asserted was the content of the conversations, he was confronted by judicial interventions insisting that he state them in direct speech.

[17] There was no objection by the Crown to Barry's mode of giving evidence; the notion that the only proper way to give the evidence was in direct speech came from the judge. His first intervention was in the following terms:

"Can we have it in direct speech? Can you explain to him what direct speech is, please? You have got to say [the complainant] said, 'I did this.', or, 'I was going to do'".

There was then some discussion about the judge's requirement, involving counsel, his Honour and Barry, who remarked:

"I think you are confusing me is what you are doing".

In a further attempt to secure the witness' obedience, these exhortations were made:

"Mr Moore: Pretend you are [the complainant] sitting there and say what she said -----

This was said by the witness to be "a little bit difficult to do" and his attempts failed. The judge explained:

"You keep saying 'said', which has the connotation of indirect speech".

"Can I say something? I'm finding this all very confusing, you know. I am a boilermaker. I'm not an English student. I should be able to say what I want to say and then people can decide afterwards".

Matters continued for some time in this fashion, when it was directed that the witness should go outside with the appellant's counsel, for further instruction.

[18] Without giving any more detail, the point may be summarised by saying that the witness appeared to find the requirement that he translate what he was intending to say into direct speech created difficulties for him; but the judge continued to insist that he make the attempt. We were referred to no authority with respect to the correctness of the judge's actions. The discussion in "Wigmore on Evidence", Chadbourn Revision, par 2097 includes the following:

"The general rule, universally accepted, is therefore that the substance or effect of the actual words spoken will suffice, the witness stating this substance as best he can from the impression left upon his memory. He may give his 'understanding' or 'impression' as to the net meaning of the words heard".

The most recent reference to the point I have been able to find, as regards evidence in a criminal case, is Godinho (1911) 7 Cr App R 12 at 14. There, Hamilton J expressed himself as disapproving an old authority, which was relied on to show that a confession must be given in the accused's very words.

[19] In this case, both the judge and the Crown have suggested that the witness should have been "prepared" by solicitors. If the proposed witness is a person not used to translating conversations from their substance into direct speech, the process might be arduous. Further, such preparation is open to the criticism that it is a mere incitement to perjury. If a witness in truth remembers only the effect of a conversation, but not the words spoken, it is a dubious compliance with the witness' oath or affirmation if the evidence is given as if he or she remembered the words spoken. If the "preparing" lawyer trains the witness to use particular expressions, differing from those the witness has in mind, the line dividing impropriety from proper practice will perhaps be crossed.

[20] There is, in my respectful opinion, no rule that a witness who does not claim to remember the words spoken in a conversation must attempt to give it in direct speech, manufacturing a conversation from a recollection of its effect. Of course, the ideal is that the exact words be given, but it is so unlikely that Barry could have remembered anything other than the substance of the conversations that the judge plainly erred in attempting to have him give evidence using direct speech. The erroneous idea that people can accurately recall conversations in direct speech, long after their occurrence, appears to have been encouraged by practices observed by some magistrates and police, in days gone by. That it is erroneous can be easily demonstrated, if one tries to perform this feat oneself.

[21] The question whether this error on the judge's part vitiates the verdict is discussed under the heading "Proviso".

Evidence of a general kind was admitted by the learned primary judge to the effect that apart from the three counts charged, other similar acts had been engaged in by the appellant. After giving evidence in support of count 1, the complainant was asked by the prosecutor a question about the beds in the room in which the offence was alleged to have been committed. Then there was the following exchange:

"Yes. What I actually meant to ask you is, this sort of conduct that you have described, was that an isolated incident or a regular incident, or-----?-- It was a very regular incident".

[23] As was pointed out during the hearing in this Court, no objection was taken to the question on the ground that it was leading or on any other basis. The appellant's contention here was that the evidence should have been excluded, although not objected to, because of its "low calibre" quality. Counsel for the appellant, Mr Maher, argued that it would have been fairer to exclude that evidence.

[24] Reliance was placed on the judgments in Gipp (1998) 194 CLR 106; there the question raised was one as to the adequacy of the directions concerning the uncharged acts, but as Mr Maher pointed out, there was some discussion of the admissibility of evidence of this kind. There:

"The complainant gave evidence in very general terms of a history of sexual interference which was not confined to the matters alleged in the indictment". [71]

McHugh and Hayne JJ held that the evidence was admissible on grounds which seem equally applicable here [72]. Callinan J remarked:

"Here I think that the evidence is admissible as propensity evidence. The way in which the appellant approached the complainant, what he told her and how he abused her over the years were all acts sufficiently similar to warrant the introduction of evidence of them". [183]

Gaudron J, on the other hand, after discussing the circumstances in which such evidence may properly be admitted, held in effect that it should not have been let in. Kirby J was inclined to the same view, but his Honour did not appear to reach a definite conclusion on the point [142]. It therefore does not appear to me that Gipp provides any support for the conclusion Mr Maher invites us to draw from it; rather, there was a majority in favour of admission of evidence of a kind similar to that adduced here. In Gipp, it was the inadequacy of the direction about uncharged acts which produced the High Court's conclusion that the conviction should be set aside. No complaint is made about the relevant directions, in this case.

[25] This ground of appeal should in my opinion be rejected.

The Crown adduced, in chief, evidence of recent complaint; the appellant says it should have been excluded. The question whether there was or was not any early complaint assumed particular significance because of the long gap in time between the dates of the alleged offences and the date of trial. According to the complainant she first raised the matter with the police in 1994 or 1995 - 12 or 13 years after the last date mentioned in the indictment. One of the difficulties about the way the law has developed in this area is that absence of complaint is one of the circumstances which can lead to the necessity of a Longman direction: Crampton [2000] HCA 60, (2000) 75 ALJR 133, 140, 141. If the Court is obliged to apply literally the requirement that evidence of complaint cannot be let in unless it is proved to have been made at the earliest reasonable opportunity, then a Longman direction may be required where it is not really appropriate, as when a complaint has in fact been made reasonably close to the time of the offences, but not at the earliest opportunity.

[27] Here, after some confusion, the evidence of the witness to whom the complaint was allegedly made fixed the date of the complaint as being the complainant's 15th birthday, i.e. 1 May 1982. The third count alleged an offence between 1 March 1981 and 1 May 1982; so, depending on the date within that period when the offence took place, the gap in time could have been as much as 14 months. Therefore it would have been difficult for the Court to be satisfied that complaint was made at the first reasonable opportunity.

[28] The obstacle in the appellant's path with respect to this point is that there was no objection to the evidence and the failure to object could well have been deliberate. The date fixed as the date of the complaint is the same date as that on which, according to the defence case, the complainant made a statement to the witness Barry inconsistent with her allegations against the appellant being genuine. In Crampton (above) the Chief Justice remarked:

"Thirdly, it is usually difficult, and frequently impossible, for a court of appeal to know why trial counsel did, or failed to do, something in the conduct of the case. Decisions as to the conduct of a trial are often based upon confidential information, and an appreciation of tactical considerations, that may never be available to an appellate court. ...

Fourthly, as a general rule, litigants are bound by the conduct of their counsel. This principle, which is an aspect of the adversarial system, forms part of the practical content of the idea of justice as applied to the outcome of a particular case. For that reason, courts have been cautious in expounding the circumstances in which an appellant will be permitted to blame trial counsel for what is said to be a miscarriage of justice". [17]-[18]

[29] It is not easy to see what forensic advantage could have ensued to the appellant from letting in the evidence of fresh complaint. In its absence the evidence before the jury would have disclosed no complaint whatever from the date when the complainant reached 15 years of age until she was in her late 20's. But it is hard to accept that the failure to object to the evidence of complaint was other than deliberate. This ground of appeal can succeed only if we are prepared to hold that the judge erred in refraining from taking an objection to the evidence, of his own motion, and ruling it out.

[30] In my opinion this ground of appeal should also be rejected.

The appellant's counsel attempted to make something of the judge's response to a question the jury asked after they retired. It was:

"Please explain the relationship between guilty beyond reasonable doubt, and the credibility of witnesses".

The judge gave a rather elaborate direction, after discussing the matter with counsel. The argument advanced for us was that the jury showed by asking the question that they were confused about the standard of proof. Having read the judge's directions about the standard of proof, which were given both in the summing‑up proper and as a response to the question I have mentioned, I can see no good reason to apprehend uncertainty on the jury's part, either with respect to which side bore the onus of proof or to what degree that proof had to satisfy them, to warrant a verdict of guilty.

I have reached the conclusion that all the grounds of appeal must be rejected except the first; in my opinion the learned primary judge erred in insisting that the witness Barry attempt to express in direct speech his claimed recollection of a conversation which had occurred many years ago. The question is whether this could have affected the verdict; in my opinion there is no reasonable possibility that it did so.

[33] As ultimately put to the complainant, when recalled for further cross-examination, the defence case about Barry was that there were two relevant discussions. In the first, the complainant supposedly told Barry that she wanted to leave home and if she could have the appellant charged with a sexual offence then she could do so; in the second, she said she was going to "stitch up" the appellant. It will be noted that, in the case as put in cross-examination, each statement related to intended, not past, action on the part of the complainant. When Barry was called he gave evidence to the effect that on the first occasion the complainant and another person "were talking about how they were planning on stitching [the appellant] up". When questioned about the matter further, his evidence as to the first occasion was to the effect that the complainant said she wanted to move out of the house into her sister's flat, that the appellant would not allow her to do so and that she and another were going to accuse the appellant of tampering with the complainant as a child if he would not let her out. Then, as to the second occasion, he asserted that the complainant said:

"It worked. I got out of the house and didn't have to go through with going to the police with these accusations".

This was inconsistent with the version put to the complainant which, as I have said, related to future action.

[34] When cross-examined, Barry added to these two conversations a third, and most relevant one, that the complainant in Barry's presence threatened the appellant that, unless he let her go and live with another named person, she would go to the police to report him for molesting her. He later said that that conversation happened before the first of the two he had previously mentioned. There were two difficulties about this addition made in cross-examination. First was the fact that it had the complainant actually accusing the appellant, directly, before the occasion when she said she was planning to do so. A second difficulty was that Barry's story about the accusation he heard the complainant make was quite inconsistent with the appellant's evidence.

[35] Looking at Barry's evidence as a whole, the critical weakness in it was the addition made in cross-examination, just referred to, that in 1982 the complainant directly accused the appellant, in Barry's presence. That must have made any intelligent juror unwilling to rely upon Barry's evidence. It was argued that the judge's insistence on Barry using direct speech might have caused some confusion. But study of the testimony does not support that view. In particular, the addition made in cross‑examination seems to have been quite unaffected by any difficulty about the mode of giving evidence.

[36] More generally, I have concluded that the judge's interventions did not create or contribute to the deficiencies in Barry's evidence, nor bring about a miscarriage of justice.

[38] MACKENZIE J: I have had the advantage of reading a draft of Pincus JA's reasons and the additional comments of the President. I agree generally with Pincus JA's analysis of whether evidence given in the form of direct speech should be insisted on. I also agree that there is no reason to suppose that any substantial miscarriage of justice was occasioned by what happened in consequence of the learned trial judge's insistence on direct speech.

[39] The witness Barry was not the only witness required to give evidence in direct speech. However, he appears to have been the one most discomforted by the requirement. However, analysis of the substance of his evidence in the context of the other evidence by Pincus JA shows that there were ample reasons for the jury to reject his evidence without there being any concern that the disadvantage at which he was placed was a factor in the jury's decision.

[40] I also agree with the reasons of Pincus JA with regard to uncharged acts and standard of proof.

[41] With regard to recent complaint, in earlier times when there was an imperfect understanding of the reasons for persons who had been sexually abused not complaining promptly the test that the complaint must have been made at the first reasonable opportunity placed more emphasis on the temporal connection between the incident and the making of the complaint. The question whether an opportunity to complain which was not availed of was a reasonable one was often decided by reference to more restrictive criteria than now. (M v R [1994] HCA 63; (1994) 181 CLR 487, 514-515; Suresh v R [1998] HCA 23; (1998) 72 ALJR 769). The fact that for some kinds of sexual offences a time limit of six months after the commission of the offence for beginning the prosecution was prescribed meant that delays of the order commonly encountered nowadays before a complaint of the offence is made could not arise where acts which would otherwise be prosecuted as offences of those kinds were committed.

[42] In the present case the first of the offences was alleged to have been committed, according to the evidence, between mid-1979 and mid-1980. The second count in the indictment was alleged to have occurred in early 1979. The third was alleged to have occurred about the beginning of April 1982.

[43] The Crown Prosecutor set out to lead evidence of a conversation between the complainant and her sister at which another woman was present on her birthday on 1 May 1982. After an exhortation by the trial judge to give the detail of the conversation in direct speech and some attempts to get the evidence in that form, the jury was sent out. It emerged that what the complainant said, that the accused had been "touching" her, was said in response to a question from her sister as to whether he had touched her in any way sexually.

[44] For reasons that are not apparent the sister did not give evidence although from an affidavit tendered on the appeal it is clear that she was at court. In any event it is not in dispute that the complaint emerged in that way, although it was, curiously, not revealed to the jury that the complainant's sister had asked the question.

[45] In the summing-up the jury was directed that the conversation was capable of constituting recent complaint with respect to Count 3. It might be questioned whether there was a sufficient basis for admission as recent complaint. In particular there was no clear evidence that it was made at the first reasonable opportunity and the evidence to which reference has just been made raised the question of whether the circumstances in which the complaint came to be made buttressed her credibility by demonstrating consistency.

[46] As it was put in R v Freeman [1980] VicRp 1; [1980] VR 1, 5:

"The ultimate question must always be does the 'complaint', in the circumstances in which it was uttered, tend to buttress the prosecutrix's credit as a witness.

This, of course, is a jury question, and that question can only arise if the trial Judge has first determined to admit the complaint. That decision involves the formation by the trial Judge, on the facts as they appear on the evidence then before him, and the facts of the complaint emerging from the proffered evidence, of a judgment whether the complaint is capable of being regarded by the jury as being a spontaneous account by the prosecutrix of the incident the subject of the charge.

Looked at in this way, it appears to us that on the facts of this case it was proper for the learned trial Judge to have considered:-

(1) how proximate was the complaint when first made to the event;

(2) what happened in the interval between the events complained of and the making of the complaint;

(3) what likelihood there was that the 'complaint' was not the spontaneous and unvarnished narrative of the prosecutrix either because the statement had been put into the prosecutrix's mind and mouth by questions of such a character as to have suggested to the prosecutrix the answer she in fact gave, or that the questioner desired the answer given rather than another, or that the circumstances indicated that the answer given was the product of a suggestive question to a suggestible mind;

(4) whether the complaint could have been induced as a consequence of the relationship existing between the prosecutrix and the person to whom the complaint was made (cf. R. v. Adams and Ross, [1965] Qd R. 255) so that it was not spontaneous but contrived or induced;

(6) whether the 'complaint' in those circumstances had or tended to have the effect of buttressing the complainant's credit by demonstrating consistency."

[47] Having said that, however, the difficulties with the appellant's submission that the evidence should have not been admitted are twofold. Firstly, there was no objection to the evidence being admitted although that would not necessarily be fatal. Secondly, the conversation was one of the events on a day when, according to the defence witness Barry, the complainant made statements suggesting that for her own purposes the complainant intended to or had made a false accusation, inconsistent with a genuine complaint of indecencies.

[48] Where there was such a contest evidence tending to disprove a strategy to get consent to leave home by threatening to falsely accuse the appellant was in my view admissible. If the evidence tended to prove that on the same day she was making a complaint in circumstances which the jury might conclude showed that it was a genuine complaint, albeit not necessarily a recent complaint, the evidence was admissible.

[49] The problem with the creditworthiness of Barry's evidence has been previously referred to. If it was erroneous to direct the jury that the evidence of the conversation on the complainant's birthday in 1982 could be treated as evidence of recent complaint on Count 3, I am satisfied there was no miscarriage of justice. Accordingly the appeal should be dismissed.

[2] [1987] USCA2 219; 813 F.2d 571 (2nd Cir. 1987), 576

[3] [2000] 1 QdR 546, 549-550, [12]-[14].

[4] [2000] QCA 385; CA No 131 of 2000, 22 September 2000, paras [3], [63]-[65].

[5] [2000] QCA 177; CA No 331 of 1999, 16 May 2000, [19].