R v Noonan [1998] VSCA 8

14. The applicant now seeks leave to appeal against his conviction for rape on the ground that the verdict is unsafe and unsatisfactory. A further ground was added by leave alleging that the learned trial judge failed adequately to direct the jury regarding proof of the elements of the offence.

17. The complainant, who was born on 28 July 1976, and was aged 19 at the time of the offence, commenced working as a masseur in the applicant's hairdressing and massage business, "Michael of Montreal", in Dandenong in April 1996. The Crown case was that in late April or early May the applicant asked CV to give him a massage, and CV did so. At the conclusion of the massage the applicant offered to give CV a massage and for that purpose CV lay face-down and naked on the massage table. The complainant alleged that after massaging him for some five or ten minutes, the applicant leapt onto the table and anally raped him.

20. The principal contention advanced by Mr. Clelland, who appeared in this Court for the applicant, but who did not appear at the trial, was that the conviction of the applicant on count 3 was unsafe and unsatisfactory. In M v. The Queen [1994] HCA 63; (1994) 181 C.L.R. 487, Mason, C.J., Deane, Dawson and Toohey, JJ. said at 493 -

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."

24. The matters which were relied on by Mr. Clelland as making the conviction unsafe or unsatisfactory were the following -

1. the complainant's evidence that the applicant had raped him was uncorroborated and unsupported by other evidence;
2. the complainant's version of the incident was highly improbable. CV alleged that the applicant had been massaging his bottom and then leapt on top of him. CV was about six feet three inches tall, the applicant about five feet eight inches, according to the evidence. CV alleged that the applicant pinned CV's legs between his own and grabbed hold of CV's shoulders. CV said he had not tried to "buck" the applicant off, nor tried to roll over or kick him, saying that he could not move. Although the applicant had hold of CV's shoulders or upper arms by both hands, and CV tensed his buttocks and anus, CV said that the applicant was able to penetrate him anally, and remained inside CV for about five minutes before he pulled out and ejaculated over CV's back;
3. the complainant was a drug addict, using cocaine, speed, opium and marijuana while he was working as a masseur at Michael of Montreal's. He also had a large number of prior convictions, recorded between 1992 and 1997, for drug offences, burglary and theft, and assault. In particular he had convictions for criminal damage, causing injury, and assault in company;
4. CV admitted lying under oath during the applicant's committal, when he denied that he had touched drugs other than marijuana because "I didn't want to say that in front of my parents", and said that he was prepared to lie on his oath because "I didn't want my parents to know";
5. while the rape was said to have been taking place, CV did not tell the applicant to stop, nor did he cry out, although there were other employees present nearby, and in adjoining rooms;
6. the rape was alleged to have occurred in late April or early May 1996. The incident was not reported to the police until July 1997, and on the day of making the complaint and his police statement, CV asked about crimes compensation;
7. there were numerous inconsistencies on important matters in the complainant's evidence: for example as to the date of the offence (which varied from late April, or early May, to mid-June), the location of the incident (CV said at the trial that it occurred in the middle massage room, but at the committal said the back room), as to what had happened before the rape, and as to whether his girlfriend, SW, was at the premises at the time of the incident. At the trial CV said he did not believe she was present, although at the committal he had said she was in the next room and marked her whereabouts on a diagram. Of course, if SW had been present in the next room, it would have been surprising that CV did not call out for help, or at all events complain to her later, and that she did not notice his distressed condition on the day;
8. CV claimed to have a good memory of the incident, saying that the events were clear in his mind. However, when pressed about inconsistencies in his story, he frequently said he was unable to remember and also gave evidence that his memory had improved dramatically in the last two months;
9. CV said that when the applicant rolled over on the massage table, he saw he had an erection. He then agreed to masturbate the applicant and did so for five minutes. Under cross-examination, however, he swore that he did not know whether the applicant was circumcised, saying "It's not like I was staring at his dick";
10. CV said his anus was injured and bleeding after the rape, and that at the time he went to the police to make his complaint in July 1997, and even at the time of the trial, his anus was still bleeding every time he went to the toilet. He said he had never been to a doctor about this, and no medical evidence was called to support his claim to anal injury;
11. at the trial CV said he had not bucked off the applicant because he was unable to move. At the committal, he had said that he had not physically tried to resist because it was not in his nature. Cross-examined as to this inconsistency, CV said it was drugs that made him violent. He also agreed that he was drug-addicted at the time of the rape and that he returned to work the day after the incident because he needed money for drugs.

29. Mr. Gyorffy, who appeared in this Court for the Crown, emphasized the fact that the applicant did not give evidence, but had relied simply on the bald denials he had made in his record of interview. He submitted that the case turned entirely on whether or not the jury accepted the complainant as an honest witness who gave accurate evidence on the material facts. He submitted that the learned judge's charge to the jury had correctly dealt with every necessary issue, with the proper emphasis on scrutinizing CV's evidence. He put it that the jury could have been in no doubt that they could convict the applicant only if they accepted the complainant as an accurate and truthful witness on facts constituting the elements of the crime of rape; and he submitted that the assessment of issues of credibility and accuracy were all matters well within the province and capability of the jury. In relation to each of the individual matters referred to above, Mr. Gyorffy submitted that there was a logical and probative response to the criticism of the jury's verdict, and that CV had, in his evidence, provided an adequate explanation in each case. He argued that CV had not been demonstrated to be an unreliable witness on any crucial issue.

32. This is not a case where, in my view, the failure of the accused to give evidence was of any real assistance to the prosecution. In R. v. Emmerson, unreported, Court of Appeal, 12 September 1997, Hayne, J.A. said at 3 that -

"if the evidence given by the complainant had been such as to invite the conclusion that the convictions (or some of them) should be set aside as unsafe or unsatisfactory, the fact that the accused did not give evidence would not, in this case, be a reason to conclude that what otherwise would be unsafe and unsatisfactory was safe and satisfactory. This was not a case in which the accused could shed light on unanswered questions. This was not a case in which the jury was being invited to draw some inference about what had happened. The accused said the events had not occurred; the complainant said they did. Had the accused given evidence it would have been little more than a bare denial of wrongdoing."

See also Weissensteiner v. The Queen [1993] HCA 65; (1993) 178 C.L.R. 217, at 228.

37. The deficiencies in the prosecution case were, it seems to me, sufficient here to account for the accused remaining silent, and the applicant's evidence, as in Emmerson, could have been little more than a bare denial of wrongdoing.

40. Having regard to the various matters (a) to (k) referred to above, it is a matter of some surprise that the jury was in this case persuaded beyond reasonable doubt to convict the applicant. There were, however, several factors which may have contributed to the jury's verdict. First, defence counsel, who, we were told in argument was inexperienced (of less than a year's call), cross-examined CV and addressed the jury on the basis that the events alleged by CV never occurred at all, but had simply been made up by him. Counsel (who, I should say, cross-examined CV to considerable effect) then, however, pursued as a second line of defence that the jury could not exclude the possibility that CV might have consented to what occurred, a somewhat inconsistent course which I would have thought was fraught with danger, and which might have been better left to the judge's charge. Secondly, the learned judge during his charge put the elements of the offence to the jury, the first being sexual penetration. His Honour said as to this element -

"That is the first element, and it is up to you but it would seem it is not really an issue here. By saying that, I mean, if you accept the evidence of the witness [CV], there would not seem to be any issue on that question."

Since the main defence of the applicant was that these events had never occurred at all, it was, I think, unfortunate that the learned judge put it to the jury that penetration was "not really an issue here". His Honour clearly meant to convey that penetration was not an issue if the jury accepted the complainant's evidence; but what his Honour said was, with respect, capable of misleading the jury into thinking that they ought to accept the evidence of CV. Thirdly, the prosecution depended on the evidence of CV, who had not called out for assistance during the alleged rape, notwithstanding that there were people in adjoining rooms, including possibly his girlfriend SW, and who had not complained to the police for 14 months. CV had then immediately sought information about crimes compensation. These circumstances in my view required the judge to warn the jury that a failure to complain, or delay in complaining, may cast doubt upon the reliability of the evidence given by the complainant; Kilby v. The Queen [1973] HCA 30; (1973) 129 C.L.R. 460. But the learned judge failed to give the jury a direction on the use it could make of CV's failure to complain at the earliest opportunity, giving only the direction required by s.61(1)(b) of the Crimes Act 1958 , and thus leaving the charge quite unbalanced; Crofts v. The Queen [1996] HCA 22; (1996) 186 C.L.R. 427; R. v. Miletic (1997) 1 V.R. 593. Finally the prosecutor put to the jury in his address the question "What was [CV's] motive for lying?" The learned judge said to the prosecutor at the end of his address that this was in conflict with what had been said by this Court in R. v. Costin, unreported, Court of Appeal, 7 August 1997, at 18. In the charge, his Honour said as to the prosecutor's question -

"[t]here are many reasons why people may lie and it is not for you, the jury, to speculate as to what reasons the complainant might have had to lie or whether in fact he had no reason, and it is not up to the accused to suggest or provide a motive for the complainant lying, and above all to stress that the onus remains on the prosecution throughout to prove the case against the accused beyond reasonable doubt."

46. This was perfectly consistent with the direction suggested in Costin at 18; but in giving such a direction, it is also necessary to bear in mind what was said by Brennan, C.J., Gaudron and Gummow, JJ. in Palmer v. The Queen [1998] HCA 2; (1998) 72 A.L.J.R. 254, at 258, where their Honours observed that although "absence of proof of motive in a witness is entirely neutral", on the other hand "proof of a motive to lie weakened a complainant's credibility". Evidence is certainly admissible to establish that a complainant has a motive to make false allegations; Wills on Circumstantial Evidence (6th ed, 1912) at 256-257; Palmer at 257-258; R. v. Umanski [1962] V.R. 242, at 244; R. v. Uhrig, unreported, Court of Criminal Appeal of New South Wales, 24 October 1996 at 16-17; R. v. Harrington, unreported, Court of Appeal, 30 October 1997, at 12-13. A motive to lie is, as Hunt, C.J. at C.L. said in Uhrig, where it does exist, a very relevant factor in judging a witness's credit. Here CV, when first complaining to the police 14 months after the alleged event, immediately enquired about crimes compensation, suggesting a possible motive to lie. The matter was mentioned in the learned judge's charge to the jury but not, I think, in such a way as adequately to attract the jury's attention to the possible impact on the complainant's credibility in all the circumstances. No exception was taken by defence counsel to any of these arguable defects in the charge.

49. This Court must, as Mr. Gyorffy reminded us, not forget that the jury carries the primary responsibility of determining guilt or innocence, and had the benefit of seeing and hearing the complainant give his evidence. Having paid full regard to these considerations, I have no doubt that the applicant's conviction for rape is unsafe and unsatisfactory and that it would be dangerous in all the circumstances to allow the verdict to stand. The improbability of the version alleged by the complainant, the many inconsistencies in his evidence, his prior convictions and his admitted perjury, his delay in reporting the incident, his claim to be still suffering and bleeding 30 months after the alleged rape, but with no medical evidence called in support, and his alleged inability to throw off the applicant, all leave me with a real doubt that the conviction for rape could be supported, particularly in the absence of any corroboration of the complainant's allegations.

52. At the conclusion of the hearing of this application, this Court made orders granting the application, allowing the appeal, quashing the conviction of the applicant on the count of rape, and directing that the applicant be acquitted on this charge. The foregoing are my reasons for agreeing in each of these orders.

58. I, too, joined in the orders made by the Court on 28th July 1998. In my opinion the defects in the evidence to which Charles, J.A. has referred, especially in paragraph 8 of his Honour's judgment, were such that it was not open to the jury to be satisfied of the applicant's guilt to the requisite standard or, perhaps, at all. In terms of s.568(1) of the Crimes Act 1958 , the verdict was "unreasonable or [could not] be supported having regard to the evidence": cf Gipp v. R. (1998) 72 A.L.J.R. 1012 at paras 120-127 and 167.

61. I also agree that the decision of this Court in R. v. Costin should be read and applied subject to the observations of Brennan, C.J., Gaudron and Gummow, JJ. in Palmer v. R. at para.9 and the other authorities to which his Honour has referred.