R v Rajakaruna

Court of Appeal (Vic)|2006-12-18|Before: CALLAWAY and REDLICH, JJ.A. and SMITH, A.J.A.

Criminal law - Common assault and rape - Two complainants - Crown case only partly circumstantial - Whether need to give directions on inferential reasoning - Rule in Browne v. Dunn - Questions not asked in cross-examination - Judge withdrawing issue from jury - Similar fact evidence - Innocent infection - Directions to be given - Appeal allowed - New trial directed.

1 I agree with the other members of the Court that ground 1B, as argued, must be upheld and that a new trial should be directed. I shall explain briefly why I am of that opinion, but there are some other issues to deal with first.

6 The applicant seeks leave to appeal against his conviction and sentence on one count of common assault and one count of rape of the complainant "SGB" on 27 September 2000 and one count of common assault and three counts of rape of the complainant "RLM" on 24 day of October 2000. The three counts of rape involving the complainant RLM arise out of the same incident.

7 Both complainants were street prostitutes. The Crown relied upon the fact that the offences occurred in similar circumstances.

8 It was the Crown case that on 27 September 2000 SGB got into the applicant's car for the purpose of providing sexual services to the applicant in exchange for

monetary payment. The applicant drove her to a car park underneath flats in Park Street, St. Kilda. Upon SGB agreeing to perform sexual services for the applicant for an agreed sum, she got into the rear seat of his car. The applicant then indicated that he would pay her after she provided the service. The complainant was not agreeable to this arrangement. The applicant then assaulted her by placing his hands around the neck so that the complainant had difficulty in breathing. She alleged that whilst the applicant was holding onto her neck, he vaginally raped her. The complainant was seen in a distressed state shortly after this event and made a complaint to an associate who observed red marks on her neck. No complaint was made by her to police until after the events involving the second complainant.

9 On 24 October 2000 the applicant solicited similar services from the complainant RLM. She got into the applicant's car for the stated purpose of providing sexual services in exchange for a monetary payment. The applicant drove her to a car park underneath flats in Park Street, in St. Kilda. The complainant got into the back seat of the car and undressed. The applicant refused to pay her before she had sex with him. The complainant was not agreeable to this arrangement and reached to the front seat for her clothes and the applicant assaulted her by placing both hands around her neck and began to choke her. As the complainant was fearful of injury, she then co-operated with the applicant who committed two acts of vaginal penetration and one act of oral penetration against her will. Very shortly after leaving the applicant, the complainant was seen in a distressed state by a co-worker, Ms Mathews, and complained that she had been raped. She was later observed to have injuries to her neck. The complainant reported the offence to the police and was medically examined.

10 On 2 November 2000 the applicant was arrested and interviewed. He admitted that each of the complainants had got into his car and stated that he did not believe that they were prostitutes. He denied that there was any discussion about the provision of sexual services in exchange for the payment of money. He admitted that he drove each of the complainants to a car park underneath a block of flats and claimed that he had consensual intercourse with them. He denied that there was any dispute over the payment of money before sexual intercourse took place. He alleged that each of them was paid a sum of money afterwards.

11 During the course of argument Mr Priest, who appeared with Mr Kassimatis for the applicant, agreed with the presiding judge that the issues raised by the grounds of appeal could be summarized in these terms:

(1) There was a failure to give the jury any or sufficient directions on the process of inferential reasoning (ground 1A).

(2) The directions on the use of similar fact evidence were deficient (ground 3).

(3) The learned trial judge's criticism of the argument advanced by counsel for the defence produced a miscarriage of justice (ground 1B).

(4) The combination of the foregoing errors constituted a miscarriage of justice (ground 4).

Ground 1A - Absence of direction on inferential reasoning

"1A The trial miscarried as a consequence of the learned trial judge's having not, adequately or at all, directed the jury on: (a) inferential reasoning and its relationship to the evidence and the criminal standard of proof."

The balance of this ground was abandoned.

12 The oral submission in support of this ground did not focus upon the direction ordinarily given, in which the process of drawing inferences is explained and compared to speculation and conjecture, but upon the consequence of the learned trial judge's failure to direct that the jury could not find the accused guilty unless the prosecution excluded any explanation consistent with innocence. It was submitted by Mr Priest that such a direction, which concerns the drawing of inferences and the exclusion of innocent hypothesis, is necessary in every case where circumstantial evidence is relied upon in proof of guilt. It was said that it was an ineluctable direction that must be given in every such trial and that the failure to do so meant that the trial miscarried. He pointed to the alleged underlying unity of each complainant's evidence and submitted that this was a species of circumstantial evidence requiring the direction that it is for the Crown to exclude all reasonable hypotheses consistent with innocence. Counsel submitted that a process of inferential reasoning was also involved in reaching conclusions as to whether the applicant told lies in his interview. Counsel drew attention to the primary issue in the case, consent and the applicant's mens rea, and submitted that the determination of these matters rested upon a process of inferential reasoning which required such a direction. Plainly any process of reasoning towards a conclusion of guilt required inferential reasoning to determine whether the applicant had the necessary mens rea.

13 The trial judge did not regard the case as one involving circumstantial evidence. On the day prior to charging the jury his Honour informed counsel that it was not his intention to give an inference direction because the Crown case rested primarily upon the direct testimony of the two complainants. Neither party took issue with this suggestion.

14 The direction suggested by Alderson B in R v Hodge[5] for the drawing of inferences in a criminal trial, where the Crown case depends upon circumstantial evidence, was restated by Menzies J in Plomp v The Queen:[6]

"The customary direction where circumstantial evidence is relied upon to prove guilt, that to enable a jury to bring in a verdict of guilty it is necessary not only that it should be a rational inference but the only rational inference that the circumstances would enable them to draw, was given."

15 Dixon CJ in Plomp[7] quoted the following statement from his judgment in Martin v Osborne:[8]

"According to the common course of human affairs, the degree of probability that the occurrence of the facts sought to be proved would be accompanied by the occurrence of the facts proved is so high that the contrary cannot reasonably be supposed. ... [t]he class of acts and occurrences that may be considered includes circumstances whose relation to the fact in issue consists in the probability or increased probability judged rationally upon common experience, that they would not be found unless the fact to be proved also existed."

16 Customarily, the jury is directed that if they consider that there is any reasonable explanation the relevant circumstances which is consistent with the innocence of the accused, they are bound to find the accused not guilty: Hodges' case; Peacock v The King;[9] Plomp v The Queen;[10] Thomas v The Queen;[11] Barca v The Queen;[12] Grant v The Queen;[13] Shepherd v The Queen.[14] In the joint judgment of Gibbs, Stephen and Mason JJ in Barca, it was suggested that such a customary direction is given when the case against an accused rests substantially upon circumstantial evidence. It is well recognised that a direction of this kind is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt: Grant v The Queen;[15] Barca; R v Van Beelen; [16] R v Poulter;[17] Shepherd v The Queen; Knight v The Queen;[18] R v Chapman (No 2);[19] R v Bikic.[20]

17 In Grant, Barwick CJ said that there was neither a rule of law nor an invariable rule of practice that the direction must or should be given in a case in which the prosecution relies upon circumstantial evidence. The Chief Justice said:

"Unquestionably there are cases which depend upon circumstantial evidence in which it would be proper, and indeed, there are cases in which it is necessary, for the trial judge to assist the jury by way of some such direction as is now being sought. Whether or not it is either proper or necessary is a matter which, in the first place, the trial judge must resolve for himself. I use the word 'proper' because I can well understand that in some cases the direction might confuse more than assist the jury, depending on the nature of the case and of the evidence given in support of it.

Where the circumstances of the case seem to require that some such direction be given, the summing up, regarded as a whole, may prove to be, and generally may be likely to be, inadequate. On the other hand, having regard to the circumstances of the case and the nature of the summing up, the failure to give the special direction may not in a particular case result in an inadequacy of the summing up as a whole. It may nonetheless be concluded from the terms of the summing up that the jury were fully instructed.

The trial judge, therefore, in the case where circumstantial evidence is relied upon by the prosecution, must consider whether or not the case calls for the assistance of the jury by the giving of a direction specifically directed to the application of the onus of proof to circumstantial evidence."[21]

18 Subsequently in Shepherd v The Queen Dawson J, with whom Mason CJ and Toohey and Gaudron JJ agreed, said:

"In many, if not most, cases involving substantial circumstantial evidence, it will be a helpful direction. In other cases, particularly where the amount of circumstantial evidence involved is slight, a direction in those terms may be confusing rather than helpful. Sometimes such a direction may be necessary to enable the jury to go about their task properly. But there is no invariable rule of practice, let alone rule of law that the direction should be given in every case involving circumstantial evidence. It will be for the trial judge in the first instance to determine whether it should be given."[22]

19 The speech of Lord Morris in McGreevy v Director of Public Prosecutions,[23] to which Dawson J referred in Shepherd, provides a cogent explanation for why no duty to give such a direction will arise in all cases in which the prosecution relies upon circumstantial evidence. His Lordship said:

"In my view, it would be undesirable to lay down as a rule which would bind judges that a direction to a jury in cases where circumstantial evidence is the basis of the prosecution case must be given in some special form, provided always that in suitable terms it is made plain to a jury that they must not convict unless they are satisfied of guilt beyond all reasonable doubt.

...

To introduce a rule as suggested by learned counsel for the appellant would, in my view, not only be unnecessary but would be undesirable. In very many criminal cases it becomes necessary to draw conclusions from some accepted evidence. The mental element in a crime can rarely be proved by direct evidence. I see no advantage in seeking for the purposes of a summing up to classify evidence into direct or circumstantial with the result that if the case for the prosecution depends (as to the commission of the act) entirely on circumstantial evidence (a term which would need to be defined) the judge becomes [sic] under an obligation to comply when summing up with a special requirement. The suggested rule is only to apply if the case depends 'entirely' on such evidence. If the rule is desirable why should it be so limited? And how is the judge to know what evidence the jury accept? Without knowing this how can he decide whether a case depends entirely on circumstantial evidence? If it were to apply, not only when the prosecution depends entirely on circumstantial evidence, but also if 'any essential ingredient' of the case so depends, there would be a risk of legalistic complications in a sphere where simplicity and clarity are of prime importance.

In agreement with the Court of Criminal Appeal I would reject the contention that there is a special obligation upon a judge in the terms of the proposition of law that I have set out. There should be no set formulae which must be used by a learned judge. In certain types of cases there are rules of law and practice which require a judge to give certain warnings though not in any compulsory wording to a jury. But in the generality of cases I see no necessity to lay down a rule which would confine or define or supplement the duty of a judge to make clear to a jury in terms which are adequate to cover the particular features of the particular case that they must not convict unless they are satisfied beyond reasonable doubt."

20 The contention advanced on behalf of the applicant that there is an overarching requirement imposed upon a trial judge to give such direction cannot be sustained. Neither was this a case in which such a direction was required. The trial judge was entitled to view the case as one which did not call for such a direction. The Crown case was not one which depended substantially upon circumstantial evidence. As the Crown's proof of the applicant's state of mind rested upon inferential reasoning, some guidance as to the process of drawing inferences may have been appropriate, but it was not necessary in the circumstances of this case. When the charge is considered as a whole it cannot be said that there was any inadequacy in the instructions given to the jury concerning their task. The trial judge fully directed the jury that the Crown must prove the elements of each count beyond reasonable doubt. This direction was repeated. The trial judge emphasised that the Crown case rested upon the jury being satisfied beyond reasonable doubt of the truth and accuracy of each complainant's testimony. It was for that reason that his Honour concluded that this case should not be viewed as one which rested to any significant extent upon circumstantial evidence. The jury's process of reasoning was most unlikely to have involved excluding a rational innocent explanation arising from such evidence of the complainants as they accepted. In my opinion, the directions given to the jury were sufficient.

Ground 1B - The learned trial judge's criticism of the arguments of defence counsel

"1B The errors alleged in ground 1A were compounded the learned trial judge's adverse comments directed at the arguments of defence counsel. In particular, the learned judge erred by charging that: (a) it would be wrong of the jury to conclude that there was any basis for finding, on the evidence, that the injuries sustained by [RLM] were so sustained in the period of hours between her being seen, first by the witness Matthews and, later, by the witness Short."

The balance of this ground and all of ground 2 were abandoned.

21 In the course of charging the jury the trial judge said:

"Well now, yesterday you heard counsel address you and they each urged that you take a particular view of the facts. That is their job. But it is very important that you distinguish between comment and evidence. Barrister's comments are not evidence. My comments are not evidence. I am not in the business of making comments. The battleground is down there. As I say, I have got absolutely nothing to do with the decision in this case.

There were a couple of matters that I wanted to bring to your attention in the area of comments being made by counsel. They are offered to you as a material for your guidance ... but you are the ones that do the guiding, you are the ones that make the judgment, and if a comment made by counsel does not appeal to you, simply because it is made by someone involved in the case, you must be steadfast and stick to your own view of it. If the comment did not appeal to you, there is an end to it, it is what you think, it is not what is urged upon you.

Now there are a couple of matters that [counsel] raised in his final address yesterday and I think they need some clarification. During the course of his final address he spoke in terms of some sort of community of prostitutes down in St Kilda, and the suggestion was that one reason why these charges are brought is that these two women got their heads together.

Well now those two women were in the witness box and they were cross-examined and it would have been perfectly appropriate for [counsel] to put questions of that sort to them. That was not done. There is no basis upon which you could find that these complainants got their heads together, there is just no evidence of it.

Similarly at one point in the course of [counsel's] address there was a suggestion and, you will remember the complaint, that [RLM] went to the home of Matthews. Ms Matthews said she saw her in a distressed state but she made no observation about injuries and we know that some - it is a bit indeterminate - but some hours later, three or four hours later, she went to the home of Mr Short. Mr Short observed the injuries on her neck and then the complainant was taken and examined, and you have the photographs of the injuries etcetera.

Now in the course of the final address of [counsel, he] referred to the fact that there was that gap between the Matthews household and the Short household and there was some evidence that the woman [RLM], had gone off to get some drugs, and was potentially with some named drug dealer. The veiled suggestion was put that these injuries, such as were seen by the medico, occurred during that gap because they were not the subject of evidence of Matthews.

Now again nothing of that was put to [RLM] and it would be wrong of you to conclude that there is any basis for finding, on the evidence in this case, that those injuries occurred in that period in between. That would be idle speculation and as I say, the occasion to test that was when the woman was in the witness box and you would have been entitled to hear her questioned about it and seen her response.

Now it is not so - well perhaps it is a long time since I was at the Bar - and when we got on our hind legs and get to addressing juries, professional licence sometimes overtakes you, and I am sure that is the situation with [counsel]. There would be no deliberate attempt to mislead you. But it is very important that these points were made and they were not legitimate points to be made in this case."

22 His Honour's first criticism of counsel's argument is relevant to ground 3, and the second to ground 1B. It was accepted by both parties in this Court that the reference by his Honour to "material for your guidance" in the second paragraph of the passage which I have just quoted, is a reference to the comments of counsel. It was also agreed that his Honour's reference to the importance of the points that were made, which appears in the final sentence of the last paragraph which I have just quoted, is a reference to the points made by his Honour.

23 Before examining the relevant part of counsel's closing address which attracted his Honour's criticism, it is convenient to refer in more detail to some parts of the trial which are relevant to this issue and the issue of "innocent infection" raised under ground 3.

24 In opening the case to the jury the learned prosecutor told the jury that the applicant had grabbed each of the complainants by the neck and forced them to engage in intercourse. The jury were told that RLM complained immediately after the event and went to the police shortly after the assault and was examined by a medical practitioner who noted injuries on her neck and arms. In opening the jury was given no detail about the complaint made by RLM to Ms Matthews, the reason being that Ms Matthews' statement had been lost and it was the prosecution's intention to take a further statement from her on the day that she arrived to give her evidence at the trial.

25 The complainant SGB testified that the applicant put his hands around her throat and forced her to have intercourse. He grabbed her throat really tightly and that the more she struggled the tighter he gripped her throat. She said that the applicant had caused the bruising around her neck that was like fingerprints. When she was able to get away from the applicant she met up with her spotter and told him that she had been hurt and showed her spotter the marks that she had on her neck from being choked. In cross-examination she agreed that she knew the complainant RLM at that time, but denied that she talked to RLM often. She agreed that from time to time she would get hurt by a client.

26 SGB's spotter, Adam Geoghegan, testified that he saw SGB get into a car and drive off. Some 45 minutes later she returned on foot looking quite distressed. She told him that she had been raped and that she had been held down by her throat. He observed some red marks to the side of her neck where she said she had been held down by the throat. He had never observed marks or injuries on her before. He had seen SGB speak with other street prostitutes including the complainant RLM.

27 RLM testified that the applicant grabbed her arm with a lot of force and pulled her by her arms onto the back seat. He leaned on her and put his hands around her throat and started to strangle her. He told her that "there's a bone on either side of your neck. If you fight me I'll squeeze it and you will suffocate." RLM told the applicant she would co-operate so he released his grip. She grabbed both of his hands and began screaming. He put his hands around her neck again and said "Why can't you girls just fucking co-operate?" RLM then asked him not to hurt her and said she would do what the applicant wanted. Until then the applicant had his hands around her neck. Before she got out of the car the applicant looked at her neck.

28 RLM returned to her flat and Ms Matthews was present. She told Ms Matthews she had been raped by a client. She could not remember how long she stayed at the flat. When she left the flat she went to David Short's home. He was the father of her daughter. His home was a couple of blocks away. She walked there and it was dark when she got there. She told him that she had been raped. She could not remember whether she told Short that she had been strangled or whether he noticed any marks on her. Short took her to the Salvation Army on Gray Street and from there to the Royal Women's Hospital where she was examined. She noticed injuries to herself at that time on her neck. The complainant was shown a book of photographs (Exhibit F) and commented upon the bruising and marks on her neck and arms shown in the photographs. She described the marks on her neck as the result of being strangled. She said she did not have those marks on her before meeting the applicant. She said they were injuries that she got at that time.

29 In cross-examination RLM said that she was not clear how long it was between the time she arrived at the flat and saw Ms Matthews and time that she went to Short's home. She remembered talking with Ms Matthews and the next thing that she remembered was being at Short's home. RLM agreed up to 41/2 hours may have passed between the time she returned to her flat and saw Ms Matthews at about 4.30 pm and the time that Short would say that she arrived at his place at 9.00 to 10.00 pm. She agreed that she was extremely distressed when she was talking with Ms Matthews and remained distressed until after she arrived at Short's home.

30 In cross examination RLM said she was a heroin user at the time of these events and had track marks in the crest of her left and right arm where she injected heroin. It was suggested to her that Ms Matthews would say when the complainant arrived at the flat they shared some heroin and speed. The complainant said she did not take speed and could not recall having any heroin at the flat. She said that she did not inject heroin after she left the applicant that day. She thought she had used heroin earlier that morning. She said that at that time she was buying drugs from a drug dealer in St Kilda named Stefan Wilson. When she needed drugs she would call him and they would meet somewhere in the St Kilda area. Later in cross examination she agreed that when she returned to the flat and saw Ms Matthews she needed drugs and probably got some. She explained that she was quite friendly with Stefan Wilson and as she had a licence and he did not, she used to drive him around in his car while he did his drug deals. In exchange she used to get drug hits. She did not think they did that on this day. She was not hanging out or withdrawing. She did not go back to work to earn any money that day after she had been raped.

31 RLM said that she thought that she knew of the person SGB. She said she did not speak with SGB about what had happened to her.

32 Because the statement of Ms Matthews had been lost, a Basha enquiry was undertaken on the morning Ms Matthews was called to give evidence. Ms Matthews then testified before the jury that she recalled when RLM returned to the flat after she had been working and was extremely hysterical. She could not say whether it was about 4.30 p.m. RLM said she wanted to see Short who was caring for her daughter and told her that she had been raped. Ms Matthews gave no evidence about whether she observed the complainant's injuries. Neither party asked her. Ms Matthews could not recall for how long RLM remained at the flat. In cross-examination she said that she could have had drugs with RLM that night, possibly heroin and speed. She said that if it was 41/2 hours before RLM went to Short's place she would not remember what might have taken place during that period.

33 Defence counsel put to RLM during cross-examination that the sex which occurred in the back of the car was consensual. He put to the complainant that there was no violence and no screaming. In substance she did not agree with those suggestions. He did not put to the complainant that she had not suffered injuries as a result of the applicant's conduct nor was it suggested to RLM that the marks on her neck and arms may have been caused by something that occurred after she left the applicant.

34 Mr Short testified that RLM came to his home at around 10.00 pm that night. She was emotional and crying. She said she had been raped. She said that her attacker had grabbed her around her throat and made threats to her. The complainant had red marks like abrasion marks on her throat. She did not tell Short what happened between the time of the attack and arriving at his place.

35 A medical practitioner, Dr Amanda Wilkin, employed by the Victorian Institute of Forensic Medicine, testified that she examined the complainant RLM in the early hours of the morning of 25 October 2000. On examination the complainant did not appear to be under the influence of drugs or alcohol. The doctor observed recent injuries on her neck in the form of a collection of abrasions. In particular, the doctor observed some linear and other irregular marks on the upper half of the right side of her neck. Some of these abrasions were arranged in three parallel lines orientated obliquely across the neck. The linear abrasions extended up to the ankle of the mandible of the lower jaw and that area was tender to touch. The abrasions on the neck, could have been caused by gripping. Dr Wilkin said that pressure applied to this region of the neck can be particularly dangerous because of the pressure receptors in the carotid artery. It may cause damage to the larynx or voice box or the trachea or windpipe. The doctor had noted that the complainant was experiencing some discomfort swallowing which could be a result of trauma to that area. In substance, Dr Wilkin's opinion was that the injuries detected were consistent with the complainant's report of being strangled.

36 The doctor described the injuries by reference to photographs in Exhibit F. She also observed bruising to the complainant's arms consistent with fingertip bruising from forceful grabbing or restraint. She observed a pinpoint puncture mark to the left arm in the front aspect of the left elbow consistent with the use of a needle. The complainant had told her that she had used heroin earlier that day.

37 Application was made by defence counsel to have Ms Matthews recalled to ask her whether the complaints by SGB or RLM were known amongst fellow prostitutes and other people working in the area. Counsel also wished to further cross-examine Ms Matthews about whether she and the complainant had taken drugs after the complainant returned to the flat. His Honour enquired of counsel whether Ms Matthews had testified that she saw marks on the complainant's neck. Senior counsel informed his Honour that Ms Matthews had not "reported" observing marks on the complainant's neck. Counsel referred to the fact that there was a gap of four hours in the complainant's account and the complainant could not say what occurred during that period.

38 His Honour ruled that Ms Matthews could be recalled for the purpose of exploring whether RLM had taken any drugs with Ms Mathews although his Honour thought the issue was of no relevance. His Honour also ruled that he would not permit defence counsel to ask Ms Matthews whether there had been discussions amongst the prostitutes about the complaints made by SGB or RLM. His Honour further ruled that the defence had not explored the question of collusion with either of the complainants and he would not permit the complainants to be recalled for that purpose.

39 Ms Matthews was recalled and adopted the evidence she had given on the voir dire that she and the complainant had shared heroin and speed after the complainant had come back to the flat. Neither party asked her whether she observed any injuries to RLM.

40 The learned prosecutor in her closing address emphasised the evidence of each complainant that the applicant applied force to their neck. She referred to the marks observed on the neck of each complainant by witnesses who saw the complainants after these events. She submitted that in each case the injuries sustained by the complainants supported their account of what the applicant did. The jury were reminded of the observations made by Short of the injuries to the complainant RLM and the evidence of Dr Wilkin. As expected, the prosecutor addressed the jury on the basis that the evidence supported RLM's account that she had been assaulted by the applicant to force her to have sex with him.

41 It is now necessary to set out verbatim that part of defence counsel's closing address which attracted the trial judge's criticism:

"Dr Wilkin saw the woman and she had injuries to her body. Wilkin was told about only two penetrations. She might have forgot [sic] about the third. Matthews is the first witness who sees [RLM] - no injuries recorded there. She didn't tell us about any injuries she observed on [RLM] when she first comes in and looks so desperately for drugs, as Matthews has it: 'It was a desperate search for drugs.'

'What happened, [RLM], between what might had been perhaps - was it 5 o'clock, 4.30 in the afternoon?' 'I think it might have been.' The calculation was that any reasonable view of the time, four and a half hours to five hours by the time she gets to see Short. Initially her stance was no drugs; later on, 'I needed drugs'. 'But, [RLM], you didn't have any money.' 'I drive for Stefan Wilson. He doesn't have a licence. May be I did that to get drugs. He's my dealer. I can't remember.'

What happened in that four and a half hours? Do you think you've been told the full story? I haven't got the answers, I don't know. But my argument to you is, neither do you. What happened in that four and a half hours? No money for drugs, you've got a debt to pay, may be with Stefan Wilson. 'I can't remember.'"

In an argument which is primarily relevant to ground 3, defence counsel later in his address said to the jury:

"Let me just ask you to consider. What you have got here is a complaint by [RLM] and a statement afterwards by [SGB]. What has happened in the meantime between 27 September and the date of the first statement which is 27 October? No idea. It can only be speculation. No idea. But it was on the street of St Kilda that she worked and so did [RLM]. Geoghegan has them talking to each other in plain and simple terms. He can recollect that in a way that you would accept. Where that got to I can't help. Can't tell you what happened in the meantime. What I do say though is, when you learn that [SGB] comes well and truly after the events of 27 September to come forward that you might wonder why it is that she came forward when she did. In other words, what was it that got her to come forward and tell what happened really if it wasn't related to [RLM].? I can't do any better than that, anything else is just plain speculation."

42 Immediately following the conclusion of defence counsel's address his Honour said in the absence of the jury:

"Your address has almost compelled me to do what I don't want to do and that is enter the arena and appear to criticise counsel. There are four things that I want to mention to you. Firstly - and this I think is a very serious error and it troubles me - in the course of your address you spoke in terms of the gap between the complainant [RLM] seeing Emma Matthews and ultimately seeing Short. Then you spoke in terms of her obtaining drugs, and it is by no means clear that that was the evidence, but obtaining drugs from her drug dealer. You then invited the jury to conclude or certainly consider, because Matthews said nothing about injuries on this woman's neck, that the injuries that were seen by Dr Wilkin could have been inflicted in that four hours.

There is not the slightest doubt that that was the purport of those submissions, not a word of that was put to that woman and I think that is a very, very gross error on your part ... I hope it's not in defiance of an indication I gave when you asked for leave to recall Emma Matthews, when towards the end of your address you spoke in terms in what it was that caused her to come forward, meaning it had to be related to [RLM] which was directly to that issue of potential collusion which it was perfectly open for you to raise with each of these complainants and nothing was done."

The prosecutor then indicated that she did not seek a discharge of the jury because of these matters. His Honour then continued:

"I can't let these things go without comment and that puts me in the invidious position of doing what I don't want to do, is get down into the battleground down there. It has got nothing to do with me but that all makes a judge's job very, very difficult. Very, very difficult. I have got to come in over the top of you, I am bound to balance things up... What do you say, am I being unfair, have I misinterpreted what you have said?

COUNSEL: Your Honour, let me just deal with Stefan Wilson, your Honour. That is what she said, your Honour, in a search for drugs that she may have gone to Stefan Wilson and driven him around, she couldn't remember.

HIS HONOUR: What has that got to do - why, if you wanted to say: 'well look, this story that you told to the doctor was a lot of poppycock, what happened is that some time between the time you left Matthews and Wilson, that's when all this occurred'; that woman is entitled to be confronted with that and let the jury see her respond to it.

COUNSEL: Your Honour, I put that there was no - it was consensual sex your Honour, I mean it's an implication there your Honour, I suppose, but your Honour, I am not frightened of putting things, it is not a - how can I put this your Honour, it is not an issue to put things your Honour, it's no big deal.

HIS HONOUR: I'm certainly not suggesting impropriety.

COUNSEL: I'm feeling a bit uncomfortable though, your Honour, but it just seemed to me to flow, your Honour.

HIS HONOUR: You might feel a bit uncomfortable but as I sit here all I have done is repeated in essence what you have said in your address and the last thing I would do is suggest that you're acting in any other way than in the best interest of your client, but whatever the reason, the conduct of this trial has been affected by those remarks and I am bound to correct them. I will ask that your address be transcribed, lest I have misconstrued things.

I think there were some examples of professional licence, ... and as I say I am going to have to deal with them and you will then have the opportunity when I have dealt with them to argue if I have, in your view, been unfair to your client you can tell me. But I have just got to say that those issues weren't raised and insofar as you made submissions about them they are of no value to the jury. I will give you time to think about what I have said. If you want to call me to task, tomorrow morning you can do it."

43 Nothing further was said by defence counsel the following morning. His Honour then charged the jury and dealt with the closing address of defence counsel in the manner set out in the passage to which I have already referred. After his Honour had charged the jury, defence counsel took exception to his Honour's charge in the following way:

"COUNSEL: Your Honour, I've got one matter, sir, that was the question of no observation of injuries and it should have been put, your Honour. Can I just - your Honour, it's my submission that that kind of comment, it works unfairness, your Honour, I submit. Your Honour, what the cross-examination went to sir ... if I could just take you to it. Perhaps before I go to that, can I just indicate to your Honour, your Honour would be aware that this witness in cross-examination said she had not injected herself after the rape and before she got to Short, so she'd not done that. Emma Matthews said, well she did, and that was a substantial issue, I think, trying to put it neutrally, when she saw her.

HIS HONOUR: As I say I haven't said anything about it. Quite frankly I think it's got nothing to do with it. That's my view about the drug injection. I mean, I haven't intervened, I have left your arguments on that, but left to me, the fact after this that she injected drugs seems to me has got nothing to do with it. Anyway, you've got -

COUNSEL: But, your Honour, here's the problem, your Honour as a cross-examiner, your Honour, at line 23 say at 114, once explored is what happened over that four and a half hours or so your Honour. Now that's a fair thing to do in the circumstances.

HIS HONOUR: Of course it is. You'd have been perfectly entitled to say, now look, when you went with this man Stefan, this is where these things occurred, isn't it?

COUNSEL: Well, look at where she gets to though, your Honour. She says, well look - no, your Honour, I don't have any - I think there were no marks. There wasn't violence in the car, your Honour, I've put that. So that that's not down to my client, is what I'm saying. Don't know what the causes are, but not down to my client."

44 Defence counsel then took his Honour to various passages of the complainant's evidence to which I have already referred that demonstrate that it was not clear what the complainant had done during the period between visiting Ms Matthews and arriving at Mr Short's home. The following exchange then occurred:

"HIS HONOUR: [i]f you've got a case, experienced counsel like you, you've got a case where you've got to meet the sort of evidence that was given by Dr Wilkin and you know you've got this point where the Crown case is it occurred in the car, and you've got to get some sort of answer to it, and there's a three or four hour gap; if you want to make anything of that, you've got to explore it.

COUNSEL: Your Honour, I'm not nervous about putting those things. It's not a - it wasn't ---

HIS HONOUR: Whether you're nervous or not, you didn't put them.

COUNSEL: I didn't, your Honour, but what I'm saying is, what do I put - my comment was: no one knows what happened in that four and a half hours. For all that - that's all I'm saying, your Honour.

HIS HONOUR: No. If you wanted to raise the issue that this occurred during that four and a half hours, then that would have to be, in my view, fairly and squarely put.

COUNSEL: Your Honour, as I say, it's not through nervousness, it's - it was put - but there it is, your Honour, I raise it ---

HIS HONOUR: I don't know - you're better able to assess the potential harm to your case. You've made your point and I'm against you."

45 In R v Demiri[24] the nature and scope of the rule in Browne v Dunn was referred to in these terms:

"The rule in Browne v Dunn is a 'rule of law and practice',[25] sometimes described as a 'rule of professional practice'.[26] The dangers attendant upon a direction in a criminal trial about non-compliance with the rule in Browne v Dunn are well-recognised. The High Court recently confirmed that, having regard to the essentially accusatory character of a criminal trial, the rule can only be applied with serious qualifications.[27] ... In the context of the cross-examination of a prosecution witness, the rule of law and practice is necessary to give the witness the opportunity to deal with such evidence - or such inferences as may be drawn from the evidence - as the accused proposes to rely upon and which contradict the testimony of the witness. Such a challenge to the witness's testimony is also essential to the jury's understanding of what facts are truly in issue. It enables the jury to make an assessment of the credibility of the witness in relation to those issues.[28]"

46 In Bulstrode v Trimble,[29] Newton J explained that the rule in Browne v Dunn has two aspects:

"In its first aspect the rule... is a rule of practice or procedure designed to achieve fairness to witnesses and a fair trial between the parties. In the second aspect it is a rule relating to weight or cogency of evidence."[30]

47 A party is obliged to give appropriate notice to the other party and its witnesses, usually by cross-examination of such witnesses, of any imputation that the first party intends to make against the other party or their witnesses concerning their conduct relevant to the case or a parties' or a witness's credit.[31]

48 Defence counsel's address contained the suggestion to the jury that they should not be satisfied that RLM was injured when she initially saw Mathews at her flat, and that RLM may have received the injuries to her neck as a consequence of events after she was seen by Ms Matthews and not as a result of the alleged violence of the applicant. The trial judge concluded that she should have been given an opportunity in cross-examination to deal with the imputation which had been made against her, in fairness to her and the party calling her.[32] The limited nature of defence counsel's cross examination of RLM, and the attack made on the complainant's credibility in counsel's closing address,[33] left the trial judge in a difficult position as to how to instruct a jury in evaluating the criticism of the complainant's credibility advanced by defence counsel as to how she sustained the injuries to her neck. It was a matter for the trial judge, whether he thought it necessary to draw to the jury's attention that the complainant had not been given the opportunity to respond to the suggestion which counsel advanced in the closing address. He could have told the jury in strong terms.[34] that was a matter that they could take into account in assessing the weight to be given to the criticism advanced by defence counsel.[35] Such a course was suggested in R v Nicholas.[36] But if there was failure by defence counsel to expressly put such a suggestion to the complainant, it did not follow that the argument could not be put to the jury.[37]

49 The prosecution's obligation to call evidence in discharge of its burden of proof is of particular relevance to the question whether a defence argument as to the cogency or adequacy of the prosecution's proof can ever be withdrawn from the jury's consideration. The ultimate burden rested upon the prosecution to adduce evidence sufficient to satisfy the jury that the injuries to RLM's neck were a consequence of the applicant's violence and not some other cause. If there was a gap in the complainant's testimony as to how the injuries were caused, and I should not be understood as suggesting that there was, it was not the applicant's responsibility to fill that gap or to clarify or resolve any ambiguity arising from the complainant's evidence.[38] That burden remained upon the prosecution. The complainant could have been re-examined about this issue as it had been raised, albeit in an indirect manner, in cross-examination. Furthermore, the prosecution could have asked for the recall of the complainant after defence counsel expressly revealed the purpose of his earlier cross-examination of the complainant.[39] Similarly, the ultimate burden was upon the prosecution to explore with Ms Matthews whether or not she had observed any injuries on the complainant's neck. She was not asked. The applicant, who bears no burden of proof, was entitled to rely upon any deficiency, if there was one, in the prosecution's proof.[40]

50 The ground of appeal is focussed upon the direction given to the jury and not upon whether there was a breach of the rule in Browne v Dunn. Where the trial judge perceives that there has been non-compliance with the rule in Browne v Dunn, a comment or direction to the jury must not have the effect of obscuring the burden which rests upon the prosecution. Questions of fact remain within the province of the jury irrespective of compliance with any rule of practice.

51 In discussing the consequences of defence counsel's failure to comply with the rule in Browne v Dunn, King CJ said R v Costi:[41]

"Failure to comply with a rule of practice does not relieve the prosecution of its onus to prove every ingredient of the charge. But failure to comply with the rule may have a marked effect upon the view which the court and jury take of the evidence and the facts. How marked that effect is, will of course, depend upon the circumstances. A trial judge is entitled, if he sees fit to do so, to direct a jury in strong terms as to the effect which failure to comply with the rule should have upon their view of the facts and the evidence, but he is not entitled, by reason of non-compliance with the rule, to withdraw an issue of fact from the jury nor to treat an ingredient of the charge as proved."

52 The learned trial judge concluded that there was no evidence that the injuries were sustained from some other cause. If that assessment of the evidence was correct, and no attempt was made on the appeal to suggest otherwise, his Honour was entitled to make a strong comment that defence counsel's argument rested on nothing more than conjecture. But the remarks by his Honour in his charge would have been understood by the jury as meaning that it would be wrong for them to find that there was a reasonable possibility that the injuries may have been sustained through some other cause.

53 The trial judge in this case did not give the usual direction that the jury were bound to follow his instructions of law but were entitled to disregard any comment that he made upon the evidence,[42] in the same way that they could disregard counsel's arguments. I am inclined to think that even if the judge had given such a direction, the jury would have viewed the remarks made by the trial judge about defence counsel's argument as a direction of law which they were bound to follow. Mr Priest rightly submitted that his Honour determined the issue for the jury and delivered to them the basis upon which it should be resolved with the authority of his office. I agree that the effect of his Honour's instruction to the jury was to withdraw the issue of fact from the jury's consideration. That he should not have done.[43]

54 It was not incumbent upon the defence to demonstrate that the injuries were caused in some other way or to prove facts that would tend to support such a conclusion. It was the jury's province to determine whether they considered that the evidence was "susceptible of a reasonable explanation" other than that the applicant had caused these injuries.[44] It was for the jury to assess the complainant's credibility and accuracy and whether anything turned upon the fact that the complainant could not now remember what she had done between the time she saw Matthews and the time she saw Short.

55 The jury were directed to reject the argument put forward on behalf of the defence as to when the injuries could have been sustained. It constituted a serious misdirection. The injuries to the complainant's neck assumed great importance at the trial. The prosecution relied upon the injuries as cogent evidence that RLM's account of the applicant's violence was truthful. The evidence went to the primary issue at the trial of the complainant's consent. The presence of injuries to RLM's neck was also likely to have affected the jury's view of the evidence of SGB, who alleged that she had red marks on her neck as a consequence of the applicant's violence. As a consequence of the direction, the only explanation left before the jury for those injuries was the complainant's evidence that the applicant had forcefully placed his hands around her neck. If the jury were satisfied that the injuries had been sustained in the manner alleged by the prosecution, it was then but a short step for the jury to conclude on the basis of those injuries that the complainant's evidence that she did not consent was truthful and accurate. However weak the defence argument may have been, it was for the jury to determine whether they were satisfied on the basis of the complainant's evidence that the injuries which she had sustained to her neck were the result of the applicant's violence.

56 Mr Priest furthermore sought to link the complaints made under grounds 1A and 1B. He submitted that as the jury had been deprived of a direction as to the conceptual framework within which they could draw inferences, they were ill equipped to assess what was conjecture and what might be inferred or concluded from the evidence or the absence of evidence. It is unnecessary to further consider this submission in light of the conclusions which I have expressed in relation to the judge's direction that it would not be legitimate for the jury to reason as defence counsel had invited them to.

Ground 3 - The directions on similar fact evidence

57 Ground 3 was as follows:

"3. The trial miscarried by reason of the trial judge's having failed properly to direct the jury on their use of similar fact evidence. In particular, the learned judge erred by:

(a) failing adequately to define or elaborate upon the concept of 'underlying unity of purpose';

(b) failing adequately to relate the similar facts relied upon by the Crown to the relevant law; and

(c) failing expressly to direct that, before the similar fact evidence relied upon by the Crown could be used in the manner sought by it, the jury needed to be satisfied beyond reasonable doubt that the similarities if found to have existed, were not as a result of innocent infection or mere coincidence."

58 Counsel sought leave to add the words I have underlined. We permitted the argument to be put on that basis but reserved our ruling on the application to amend. If it were necessary, the amendment should in my view be allowed.

59 When defence counsel applied to recall Ms Matthews he told the trial judge that he wanted to ask Ms Matthews questions about whether there was "talk on the street" within the two days after the incident involving the complainant RLM. Counsel said he wished to establish that RLM's complaint had not been kept secret, was known amongst street workers, and was information of which SGB may have learned. The trial judge drew defence counsel's attention to the fact that he had not suggested to either of the complainants that they had colluded in making their complaints to the police. His Honour said he would not permit defence counsel to introduce such evidence via Ms Matthews and ruled that defence counsel could not cross-examine Ms Matthews about that subject or have the complainants recalled. It is to be observed that defence counsel did not seek to challenge his Honour's view that such an attack amounted to an allegation of collusion, nor did he or the prosecution apply to have the complainants recalled.

60 I have already referred to defence counsel's closing address on this subject.[45] The issue was explored with the jury in the context that SGB had made no complaint to police until RLM had complained. I have also set out his Honour's concern, which he conveyed to defence counsel in the jury's absence,[46] and his Honour's subsequent direction to the jury in which he also criticised this particular defence argument.[47] His Honour concluded his direction by telling the jury that defence counsel's arguments "were not legitimate points to be made in this case". No exception was taken to his Honour's directions.

61 During the course of his submissions in relation to ground 1B Mr Priest eschewed any intent to rely upon the trial judge's direction that the defence had made no suggestion to either complainant of collusion and that there was no evidence to support such a claim. Instead, he argued that defence counsel had raised an argument, based upon evidence, that amounted to a claim of innocent infection. In view of the conclusions that I have reached in relation to ground 1B, it is unnecessary that I decide whether the evidence which defence counsel elicited during the course of the trial was capable of supporting an allegation of innocent infection or whether closing argument amounted to such a suggestion.

62 As there may be a further trial, and in deference to the arguments advanced on appeal, it is desirable that I deal with some aspects of the argument raised. They concern the approach that should be followed by defence counsel where similar fact evidence and probability reasoning is relied upon by the prosecution and the defence seeks to explain such evidence on the basis of collusion, collaboration or innocent infection, and the directions which should be given by the trial judge in such circumstances.

63 The probative capacity of similar fact evidence rests upon the improbability of coincidence of the similar facts asserted by the different complainants. The question which the jury were to ask themselves is whether the similarities between what the applicant was alleged to have said and done to each complainant were so unlikely to be mere coincidence as to permit the drawing of the inference that the applicant engaged in the course of conduct which each of them alleged.[48] In the absence of collusion, collaboration or some other form of infection, the relationship of circumstances and the nature of the evidence which each complainant gave was such as to render the evidence of each complainant supportive of the evidence of the other.

64 The nature of evidence of this type, which may support "probability reasoning", was explained by Eames JA in R v Rajakaruna:[49]

"the test, as stated by Callaway JA in Best is: 'assuming that the jury will accept the evidence as true, is the improbability of coincidence so great that it is just to admit it despite its prejudicial effect?' As I have discussed, that was one of the ways in which the prosecutor sought to use the similar fact evidence, but, as Gaudron J discussed in Thompson v The Queen, the probative value of similar fact evidence may lie not so much in it displaying 'striking similarity', 'system' or 'pattern', all of which might require the identification of points of similarity, but by virtue of there being an 'underlying unity' between the evidence of the various complainants. That too was said to be the case here. The prosecutor contended that the items listed in his 'Schedule of Similarities' if not constituting striking similarity in the circumstances of the offences nonetheless displayed an underlying unity in this case, reflecting a common modus operandi, or else providing mutual support for the various accounts." (Footnotes omitted)

"Whilst the probative value of the evidence does not depend on there being a striking similarity in the separate accounts there must be 'some unusual feature common to the events in question, or some underlying unity, system or pattern'.[51] Such that 'it renders it improbable that two or more persons would give an account of particular conduct if that conduct did not in fact occur'[52]."

65 Where the striking similarities of several witnesses' statements cannot be said to be coincidence, they must either arise because their accounts are true or because of a cause common to the witnesses. Issues arising as to the reliability of similar fact evidence on account of possible collusion, collaboration or innocent infection are for the jury to decide.[53] Where there is an issue of collusion, collaboration, unconscious influence or innocent infection the jury must be satisfied beyond reasonable doubt that it is not the explanation for the similarities on which the Crown relies before they may use probability reasoning.[54] As Callaway JA stated in R v Glennon (No 2):

"The unconscious influence or innocent infection may supply the explanation for the similarity between the respective complainants' accounts without there being any dishonest fabrication. Where that is an issue at a trial, the judge should direct the jury that they have to be satisfied beyond reasonable doubt that such unconscious influence or innocent infection is not the explanation for the similarities on which the Crown relies."[55]

66 This had already been explained in his Honour's judgment in R v Best.[56] Such an approach is in accordance with the passage from Lord Wilberforce's speech in R v Boardman that was expressly approved by Brennan and Dawson JJ in Hoch v The Queen.

67 The obligation to give such a direction will only arise if there is evidence to suggest that there is a possibility that the similar fact evidence may be explained by such a factor. If such an explanation has not been raised as an issue it is not necessary that the jury be directed to exclude that explanation before they use similar fact evidence as part of a process of probability reasoning.[57]

68 If an argument as to collusion collaboration or innocent infection is to be advanced, the allegation should be put to the relevant witnesses in unmistakeable terms. Counsel at no stage during the trial made plain that "innocent infection" was relied upon as an explanation for the similarities in account. It is not surprising that his Honour responded to counsel's closing argument as he did. The trial judge did not receive the assistance to which he was entitled. Assuming without deciding that such a suggestion had been pursued during the evidence and in the closing address, it would have been a question for the jury whether or not the similarities in the complainants' accounts might be explained as a result of innocent infection.

69 Complaint was also made about the directions as to how the jury might use the similarities in the complainants' account. His Honour told the jury that there were features of the complainants' evidence which indicate "an underlying unity of purpose" and directed the jury's attention to a number of matters which he said the prosecutor relied upon as demonstrating this "underlying unity of purpose". The jury was told that the locality, the time of day, the method by which the applicant picked up each of the complainants, the questions about price, the nature of the service to be provided, the place to which the applicant drove the complainants, his unwillingness to pay them before they provided sexual services and the nature of the force that he used were all said to be features of similarity. Some of these matters were not in issue and were not likely to advance the Crown case as to the question of consent.[58] That is to say, some of the common features of the complainants' accounts did not make it more probable that their accounts as to matters that were in issue, were more likely to be true.

70 His Honour, a number of times during the charge, referred to the question whether those features revealed an "underlying unity of purpose". In her closing address, the prosecutor used the term "underlying unity", which is language found in the decisions in Hoch v The Queen[59] and Pfennig v The Queen.[60] The expression was used as a synonym for "striking similarity" which is the language used in earlier cases such as Sutton v R[61] and R v Boardman.[62] It was inappropriate and apt to mislead the jury to add to the words "underlying unity" the words "of purpose". As the identity of the applicant was not in issue, nor was it the Crown case that the applicant had the same criminal purpose in dealing with each complainant, the introduction of the applicant's "purpose" was not relevant to the process of probability reasoning.

71 The applicant has made out ground 1B. Counsel for the respondent submitted

that in the event the applicant succeeded on any ground we should not be satisfied that there was any substantial miscarriage of justice and should apply the proviso to s 568(1). In my view that course is not open in the present case. The error was highly relevant to the jury's assessment of each of the complainants' credibility. In making its own independent assessment of the evidence this Court would ordinarily take into account the view which the jury must have formed as to the complainants' credibility. As the error affected the complainants' credibility and was likely to be, as was submitted, a powerful step towards a conclusion of guilt, this is not a case in which the proviso can be applied.[63]

72 I would therefore grant the application for leave to appeal, allow the appeal and order that a new trial be had.

73 I have read in draft the reasons for judgement of Redlich J.A. in this matter. I agree, substantially for the reasons he advances, that Ground 1A is not made out. I also agree, that Ground 1B has been made out and, therefore, the application should be granted and the appeal allowed. While the evidence supporting the alternative explanation about the injuries that were suffered in the four hour period referred to was weak, there was sufficient evidence to raise the issue and the prosecution could have led, but did not attempt to lead, further evidence on it. The issue should not have been taken away from the jury by the learned trial judge. It was a matter to be considered and assessed by the jury. Any non-compliance with Browne v Dunn did not alter that fact.

74 As to the operation of Browne v Dunn, in the circumstances of this case, I do not propose to comment save to say that in deciding what comment or direction is to be given, a trial judge would need to take into account the prosecution's ultimate responsibility to call evidence relevant to the issues. There are two other matters on which I wish to express some views.

75 In relation to Ground 3, and the question of innocent infection of the evidence of the two complainants, it seems to me that the matter was appropriately handled by the learned trial judge in that at no time did the accused seek to advance an explanation of innocent infection. The address of counsel for the accused to the jury purported to attack the credit of the complainants on the grounds of collusion. His Honour identified the attack as one of collusion. In the debate that occurred between counsel for the accused and the judge, counsel did not argue that his Honour should address the issue of innocent infection. Later, when the issue of collusion was taken away from the jury by his Honour, counsel did not take exception. My interpretation of what occurred is that counsel wished to put his attack to the credit of both complainants at its highest by raising the issue of deliberate collusion. This involved dishonesty on the part of both and that was the issue he wanted to put in the jury's mind. It was also the more persuasive hypothesis having regard to the critical areas of alleged similarity, namely, the issue of payment and the issue of violence. If that analysis be correct, counsel would not have wanted to put forward, or have put forward, an alternative of innocent infection. The failure to take exception, in my view, reflects the fact that counsel realised that he had not gone far enough in cross examination to bring out evidence that would raise collusion as an issue.

76 As to the use of the words "purpose" when referring to "underlying unity", I am inclined to think that it was unlikely to mislead the jury in light of the way the prosecution put its case on the underlying unity between the two accounts of the witnesses but it is unnecessary to form a final view on that point. Obviously, it would be preferable to refer to the alleged underlying unity of the accounts and not to introduce other terms which could confuse.

[1] R. v. Best [1998] 4 V.R. 621 at 611 and 616 point 4.

[2] The gap need not be in a sequence of events. A murder may occur in a block of flats and counsel may wish to argue that there were four or five other people present on the night in question. Counsel cannot be prevented from advancing that argument simply because there is no evidence, other than presence, implicating them.

[3] [2005] HCA 81; (2005) 80 A.L.J.R. 444; 223 A.L.R. 662.

[4] Broadhurst v. The Queen [1964] A.C. 441 at 457. See also Steinberg v. Federal Commissioner of Taxation [1975] HCA 63; (1975) 134 C.L.R. 640 at 684, 694-695 and 705.

[5] (1838) 2 Lewin CC 227 at 228.

[6] [1963] HCA 44; (1963) 110 CLR 234 at 252.

[7] At 242.

[8] [1936] HCA 23; (1936) 55 CLR 367 at 375.

[9] [1911] HCA 66; (1911) 13 CLR 619 at 634.

[10] At 243.

[11] [1960] HCA 2; (1960) 102 CLR 584 at 605-6.

[12] [1975] HCA 42; (1975) 133 CLR 82 at 104.

[13] (1975) 11 ALR 503 at 504.

[14] [1990] HCA 56; (1990) 170 CLR 573 at 578.

[15] Per Barwick CJ at 504.

[16] [1973] 4 SASR 353.

[17] (1978) 19 SASR 370 per Bray CJ at 374.

[18] [1992] HCA 56; (1992) 175 CLR 495.

[19] [2002] SASC 255; (2002) 83 SASR 286.

[20] [2002] NSWCCA 227.

[21] At 504.

[22] At 578-9.

[23] [1973] 1 WLR 276

[24] [2006] VSCA 64 at [35]-[36].

[25] Zoneff v R (2000) 200 CLR 234 at [49].

[26] Browne v Dunn (1893) 6 R 67 at 721; Allied Pastoral Holdings Pty Ltd v FCT (1983) 44 ALR 607 at 623 per Hunt J; MWJ v R (2005) HCA 74 [17] per Gleeson CJ and Heydon J.

[27] MWJ v R (2005) 22 ALR 436, at [18] per Gleeson CJ and Heydon J, at [41] per Gummow, Kirby and Callinan JJ.

[28] Reid v Kerr (1974) 9 SASR 367 at [373]-[374] per Wells J.

[29] [1970] VicRp 104; [1970] VR 840.

[30] At 846.

[31] MWJ v R at 448, [38] per Gummow, Kirby and Callinan JJ; R v MG [2006] VSCA 264 at [5]- [6] per Ashley JA, and at [52]-[53] per Coldrey AJA.

[32] MWJ v R at [39].

[33] If defence counsel was not obliged to so cross examine the complainant and Ms Mathews, the applicant's contention that the trial judge was in error in directing the jury as he did would be so much the stronger.

[34] R v McDowell [1997] 1 VR 473 at 480-482 per Smith AJA, with whom Phillips CJ and Southwell AJA agreed.

[35] This is the 'second aspect' of the rule referred to by Newton J in Bulstrode v Trimble. As his Honour went on to explain, the fact that a witness is not cross-examined on a particular matter will, as a matter of commonsense, often be a good reason for accepting the witness' evidence on that matter (at 848).

[36] (2001) 1 VR 356 at [128]-[146], especially at [140]-[143].

[37] MWJ v R, at [19] per Gleeson CJ and Heydon J.

[38] R v MG, supra, at [6] per Ashley JA.

[39] R v MG, [8]-[9] per Ashley JA.

[40] Tully v The Queen [2006] HCA 56 at [46] per Hayne J.

[41] (1987) 48 SASR 269 at 271.

[42] Azzopardi v The Queen (2001) 205 CLR 50 at 69-70_; Doggett v The Queen_ (2001) 208 CLR 343 at 373 [115].

[43] The following passage from Cross on Evidence must, at least with respect to criminal trials, be read as subject to this serious qualification: "[i]f the witness is not cross-examined on a point, cross-examining counsel may be taken to accept it and may not be permitted to address in a fashion which asks the court not to accept it." (Aust. Ed. at [17460]).

[44] Barca v R [1975] HCA 42; (1975) 133 CLR 82 at 106.

[45] At [37] above.

[46] At [17] above.

[47] Ibid.

[48] R v Buckley [2004] VSCA 185; (2004) 10 VR 215 at 230 [52] per Nettle JA.

[49] [2004] VSCA 114; (2004) 8 VR 340 at 358 [81].

[50] At 361 [89].

[51] BRS v R [1997] HCA 47; (1997) 191 CLR 275 at 298-9.

[52] BRS at 299.

[53] R v Papamitrou [2004] VSCA 12 [29] per Winneke P.

[54] R v Glennon (No 2) [2001] VSCA 17; (2001) 7 VR 631 at 689 [160].

[55] At [155].

[56] At 611, 616.

[57] R v DCC [2004] VSCA 230 at [74] per Eames JA; Glennon (No. 2) [2001] VSCA 17; (2001) 7 VR 631 at 662 [73] per Winneke P and Ormiston JA, [117] per Callaway JA_._

[58] For example: the time of day, the locality, and the means by which they were picked up.

[59] [1988] HCA 50; (1988) 165 CLR 292 at 294-5.

[60] [1995] HCA 7; (1995) 182 CLR 461.

[61] [1984] HCA 5; (1984) 152 CLR 528.

[62] [1975] AC 421. The phrase "underlying unity of purpose" was used in the Scottish case of O'Neill v H M Advocate [1996] SLT 1121, the High Court of Justiciary stating that there may be material similarities between a number of crimes sufficient to show a unity of purpose between those who commit those crimes, thus permitting the conclusion that it was the same offender or offenders.

[63] A similar view was reached in R v MG per Coldrey AJA [89]-[90].

At a glance

Court

Decision date

Before

Source

Judgment (50 paragraphs)

Parties

Cases Cited (25)